1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3202 OF 2009 Ramesh Shridhar Joshi & Ors. .. Petitioners versus Naresh R. Mittal & Ors. .. Respondents Mr.Vishwajeet Sawant and Mr.Daljeet Singh i/by ALMT Legal for the petitioners. Mr.G.S.Godbole i/by Ms.Pallavi Dabholkar for the respondents. CORAM : A.S.OKA, J. DATE : 2nd September 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the petition will be taken for final disposal at admission stage. 2. By this writ petition, the petitioners original defendants have taken exception to the order dated 1st January 2009 passed by the trial Court by which application for grant of permission to amend the written statement has been rejected. 3. The present petitioners are original 1st to 6th defendants and 1st to 4th respondents are the original plaintiffs. The plaintiffs filed a suit for specific 2 performance of Agreement for Sale dated 25th July 1995 executed in their favour. Various other reliefs have been prayed for in the plaint including a declaration that the Sale Deed executed by the 1st and 2nd defendants in favour of 3rd to 6th defendants is null and void. The written statement was filed by the defendants on 30th January 2001. An application was made by the defendants for amendment of the written statement. By the proposed amendment, certain paragraphs, namely, paragraph Nos.25A to 25D were sought to be added to the written statement. Reliance is sought to be placed by proposed paragraph 25A on the communication issued by the competent authority on 24th March 1999 to the defendants that the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the said Act) are not applicable to the suit land. Reliance is also sought to be placed on order passed by the Additional Collector, Pune on 31st July 2006 by which a portion of the suit land was allegedly converted into N.A land. By paragraph 25B, the defendants want to plead that on the basis of order dated 31st July 2006 substantial amount has been paid by them to the State Government. By paragraph No.25C, reliance is sought to be placed on order dated 24th March 1999 passed by the Chief Minister of the State. By the said order it is alleged that an amount as per valuation provided in the ready reckoner was ordered to be paid to the State Government for grant of exemption under the said Act of 1976. It is sought to be contended that on the basis of the said order, the defendants have paid a sum of Rs. 60,80,000/- to the State Government in respect of part of the suit land which 3 has been repurchased by the State Government from the defendants. By adding paragraph 25D, reliance was sought to be placed on alleged regularization of occupation of area of 32 acres out of survey No.10/7 on the basis of the Maharashtra Gunthewari and Development Regularisation Act, 2001. 4. The learned trial Judge while rejecting the application for amendment observed that the stand sought to be taken by the defendants by the proposed amendment was not so material and essential. The learned Judge observed that the suit was at the stage of final arguments. The learned Judge noted that if amendment was allowed, the second phase of litigation between the parties will commence. The learned Judge observed that the defendants have right to produce certified copies of the documents referred to in paragraphs sought to be added. The learned Judge, therefore, proceeded to reject the application by the impugned order. 5. The learned counsel appearing for the petitioners submitted that the amendment was based on subsequent events. He pointed out that large amounts have been paid by the defendants. He submitted that the subsequent events sought to be pleaded by the amendment were certainly relevant when the Court decides whether the discretion under section 20 of the Specific Relief Act, 1963 is to be exercised in favour of the plaintiffs. He submitted that suit will not be governed by the amended provisions of Rule 4 17 of Order VI of the said Code as the suit has been filed prior to 1st July 2002. The learned counsel appearing for the original plaintiffs opposed the petition by submitting that the trial Court has rightly observed that the text of the proposed amendment has no relevance to the issues involved in the suit as the suit is for specific performance of the Agreement for Sale. He submitted that the trial Court has permitted the defendants to produce the certified copies of the documents on which the defendants want to rely upon by amending the written statement. He submitted that in the circumstances there is no prejudice to the defendants. He submitted that the application for amendment could have been made earlier and there is no explanation as to why same was belatedly filed when the suit was fixed for final arguments. 6. I have considered the submissions. The suit is filed in the year 1998 and therefore the same has been filed before the year 2002 amendment to the said Code came into force. By the proposed amendment, the defendants want to rely upon order dated 30th July 2006 passed by the Additional Collector and order dated 31st October 2007 passed by the Hon’ble the Chief Minister. The defendants want to rely upon the payment of amount of Rs. 60,80,000/- made on the basis of the order dated 31st October 2007. The application for amendment was filed on 12th August 2008. As stated earlier, the written statement was filed on 30th January 2001. 7. Considering the provision of section 20 of the Specific Relief Act, 5 1963, the events which are sought to be pleaded by the proposed amendment are certainly relevant. Suffice it to say that at the stage of considering the application for amendment, the trial Court could not have come to the conclusion that the events sought to be pleaded and the documents sought to be relied upon were not relevant for the decision of the suit. 8. The Court ought to have adopted a liberal approach while considering the prayer for amendment of the written statement. It is true that there is some delay in filing the application in as much as the application is filed on 12th August 2008. It is pertinent to note that reliance is sought to be placed on order dated 31st October 2007 passed by the Hon’ble the Chief Minister and payment of substantial amount subsequently on the basis of the said order. Therefore, this was a case where amendment ought to have been permitted and the plaintiffs could have been compensated by ordering payment of costs. 9. If the amendment is allowed at this stage, it is obvious that the original plaintiffs will have to be given an opportunity to take appropriate steps for meeting the averments sought to be added by the amendment. If necessary, it will be open for the original plaintiffs to apply for amendment of the plaint. It will be also open for the plaintiffs and the defendants to lead further evidence and to apply for recall of the witnesses already examined by the 6 rival parties for further examination. 10. Considering the facts and circumstances of the case, the amount of costs is quantified at Rs.15,000/-. 11. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 1st January 2009 is quashed and set aside. (b) The application made by the petitioners at Exhibit 187 is allowed. (c) Amendment shall be carried out within a period of two weeks from the date on which authenticated copy of this order is produced before the trial Court. (d) After amendment is carried out, it will be open for the parties to take appropriate steps as observed in earlier part of this judgment. (e) The petitioners will pay costs of Rs.15,000/- to the original plaintiffs within a period of six weeks from today. Deposit of the amount of the costs with the trial Court will be treated as sufficient compliance. (f) Writ petition is allowed in above terms. 7 . The learned counsel appearing for the original plaintiffs prays for stay of this order. It is made clear that even if amendment is carried out, the trial will not proceed further for a period of eight weeks from today. (A.S.OKA,J)