(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7984 OF 2009 Ganesh s/o. Bapurao Patil, Age : 44 years, Occupation : Service, R/o. Near Sunil Printers, Shahakar Nagar, Bhusawal, Taluka : Bhusawal, District : Jalgaon. .. Petitioner. versus 1. Yeshwant s/o. Topa Mahajan, Age : 40 years, Occupation : Service, R/o. Gajanan Maharaj Nagar, Bhusawal, District : Jalgaon. 2. Shobha Suresh Chaudhari, Age : Major, Occupation : Household. 3. Yogesh Bapurao Patil, Age : Major, Occupation : - . 4. Jivan Bapurao Patil, Age : Major, Occupation : Service. R/o. Methaji Mala, Bhusawal, District : Jalgaon. (2) 5. Municipal Council, Bhusawal, Taluka : Bhusawal, District : Jalgaon, Through its Chief Officer. .. Respondents. .......................... Mr. Mukul Kulkarni, Advocate, for the petitioner. .......................... CORAM : B.R. GAVAI, J. DATE : 26TH NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order dated 9th September 2009, passed by the learned Civil Judge (Junior Division), Bhusawal, below Exhibit 59 in Regular Civil Suit No. 150/2004, thereby allowing the application filed by the respondent plaintiff for amendment of the plaint. 2. The respondent plaintiff has filed a suit for declaration to the effect that the construction made by defendant nos.1 to 4 is in contravention of the Maharashtra Municipalities Act and the Planning Act and, therefore, the said defendants should be directed to demolish the construction which is not in consistent with the sanctioned plan. (3) 3. The said suit is resisted by the present petitioner. During the pendency of the suit and after the issues were framed, an application below Exhibit 59 came to be filed for amendment of the plaint. By way of said application, the plaintiff sought an amendment to the effect that the construction made by the defendant nos.1 to 5 is illegal and, therefore, they should be directed to demolish the same and if they did not do so, the Municipal Council be directed to demolish the same. The said application is allowed. Hence, the present petition. 4. Mr. Mukul Kulkarni, learned Counsel appearing for the petitioner, submits that the respondent plaintiff had made an application for issuing summons to the Chief Officer of the Municipal Council to be examined on behalf of the plaintiff. He submits that after summons is issued, the present application, which is allowed, was filed. He submits that a relief could not be sought against a party to whom a witness summons was already issued at the instance of the plaintiff. 5. From the perusal of the pleadings in the plaint, it can clearly be seen that the suit filed by the plaintiff is on a premise, that the construction made by the petitioner herein is in contravention of the Maharashtra Municipalities Act and the Town Planning Act. He has, therefore, sought a declaration that it is contrary to the said statutory provision and, therefore, petitioner be directed to demolish the same. By way of amendment, the only addition is sought that if the event, the petitioner did not demolish the construction, the Municipal Council be directed to do so. (4) 6. It cannot be a disputed position, that it is the duty of the Municipal Council to demolish the construction, if it is found in contravention of the statutory provisions. 7. In my considered view, the amendment, which is permitted by the trial court, is not of such a nature which would change nature of the suit. In any case, it is settled law that the courts have to take liberal view in grant of amendment. The only rider, in view of amendment to the Code of Civil Procedure, 1908, in 2002, is that the amendment should not be permitted if it is sought to be made after commencement of trial, unless party seeking amendment satisfies the condition that the matter could not be brought on record prior to commencement of trial, inspite of exercise of due diligence. Admittedly, in the present case, only issues are framed and as such, trial is yet to commence. In that view of the matter, no error could be found with the discretion exercised by the learned Judge of the trial court in allowing the application for amendment. 8. The petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7984