1 wp5025-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5025 OF 2011 Mrs. Saraswati wd./of Dadaji Yeshwant Sarmalkar, since Deceased Through her LR and others .. Petitioners Versus M/s Estern Ceramics Ltd. and others .. Respondents Ms. S. A. Damale, the Petitioners Ms. Kanchan Shivkar i/by M/s Gujaria & Co. for Respondent Nos. 1 and 2 Mr. Ashish Kamat a/w Mr. Vivek shilalkar, Mr. Sushant Chavan. Sodjartj Samantalay i/by Shiralkar & Co. for the respondent No.8 CORAM: R. M. BORDE, J. DATED : 22nd August, 2011 P. C. 1. Heard the respective counsel appearing for the parties. 2. Chamber Summons No.74 of 2011 filed by the Petitioners-original plaintiffs has been dismissed by the City Civil court, and said order is impugned in this Petition. 3. The Petitioners-original plaintiffs instituted a suit 2 wp5025-11.sxw (bearing Suit No.412of 2007) in the City Civil Court in the year 2007, claiming declaration that the petitioners- plaintiffs are entitled to be declared as legal occupants of the suit property by adverse possession, which was given on lease basis and for handing over possession of the suit plot to the plaintiffs by defendant nos.1 and 2. A prayer is also made in the plaint seeking restrain order against the defendant no. 1 and 2 from transferring, alienating or creating third party interest on the suit plot. It is contended in the application presented by the plaintiffs seeking amendment that they came to know about the starting of construction by defendant no.8 only in the year 2010 and as such, the plaintiff is seeking directions against the defendant no.8 for handover of vacant and peaceful possession of the area, constructed portion admeasuring 1707.50 sq.meters to the plaintiffs, in lieu of open area of the suit plot, forcibly taken away by the Defendant No. 1 and 2 from the plaintiff. The trial Court proceeded to reject the application on the ground that the application is tendered much after the commencement of the trial. The presentation of the belated application, according 3 wp5025-11.sxw to the trial court, was not bona fide. The plaintiff has not shown due diligence in presenting the application and on perusal of the application it is not evident that the amendment sought is in respect of the events those occurred after the commencement of the trial. 4. I have perused the application as well as the impugned order passed by the trial Court and heard the arguments advanced by the respective counsel appearing for the parties. 5. It is evident that the suit is presented in 2007 claiming reliefs in respect of the recovery of possession of the open plot. It is also evident on perusal of the order passed on the notice of motion that the defendants were permitted to proceed with the construction work and they were required to obtain leave of the Court as and when they intend to create third party interest. The defendant no.8 was impleaded as party to the proceeding by virtue of the order passed on 10th March, 2008. Since the issuance of order passed on notice of motion by the trial court, permitting the defendant No.8 to proceed with the construction activity on 9th April,2008, it can 4 wp5025-11.sxw be taken safely that the plaintiffs were aware that the defendant is likely to commence construction thereafter. In spite of issuance of such order by the Court, the plaintiff waited for about three years for presenting the instant application and moved the Court only after the commencement of recording of evidence. It is the contention of the plaintiffs that they came to know in respect of the commencement of construction by defendant no.8 only after securing information under the Right to Information Act does not appear to be convincing. 6. In my opinion, the trial Court has adopted a correct approach in the matter and there is no error in turning down the Chamber Summons presented by the plaintiff,. 7. The petition is devoid of substance and hence stands rejected. ( R. M. BORDE, J.)