(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5247 OF 2009 Smt. Padma Rani w/o. Ramprasad Mehta, Age : 70 years, Occupation : Nil, .. Petitioner R/o. 5/1/47, Osmanpura, (Original Aurangabad. plaintiff) versus 1. Mr. Vishnu Haridas Shinde, Age : Major, Occupation : Business, R/o. 1, Prachi Complex, Kokanwadi and also at Behind Nishat Garden, Beed Byepass Road, In front of MIT College, Aurangabad. 2. Municipal Corporation, Aurangabad, Through its Commissioner. .. Respondents. 3. Prakash Kaur d/o. Dalipsing, Age : Major, Occupation : Household, .. Respondent R/o. Behind Satish Motors, no.3 is dead. Chintamani Colony, Aurangabad. .......................... (2) Mr. R.F. Totla, Advocate, for the petitioner. Mr. S.V. Gangapurwala, Advocate, for respondent no.1. Mr. S.N. Pagare, Advocate, for respondent no.2. Respondent no.3 is dead. .......................... CORAM : B.R. GAVAI, J. DATE : 9TH NOVEMBER 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner has challenged the order dated 21st July 2009, passed by the learned 6th Joint Civil Judge (Junior Division), Aurangabad, below Exhibits 38 and 49, in Regular Civil Suit No. 720/2008, thereby rejecting the applications filed by the present petitioner for amendment of the plaint, and the order below Exhibit 48, thereby rejecting the application filed by the present petitioner for addition of the Municipal Corporation as a party defendant. 3. The petitioner, who claims to be tenant of the respondent no. 1 herein, has filed a suit for perpetual injunction seeking an order of restraint against the said respondent from disturbing peaceful possession (3) and from evicting the petitioner from the suit property. It is the contention of the petitioner that the deceased respondent no.3 was the original landlord who has transferred rights in favour of respondent no.1 and, as such, the petitioner became tenant of respondent no.1. 4. It appears that after filing of written statement, the petitioner came to know that the respondent no.1 had relinquished his rights in favour of Municipal Corporation, Aurangabad, in so far as the portion of the property in which the petitioner was residing. Accordingly, an application for adding the Municipal Corporation as defendant was filed. The same was rejected. The said order was challenged before this court by way of Writ Petition No. 1495/2009. However, since there were no allegations against the Corporation, in the plaint, the petitioner sought liberty to withdraw the petition with further liberty to make an application for amendment and addition of parties. The petition was disposed of as withdrawn with liberty as prayed for. 5. It appears that accordingly two applications for amendment have been made, one application is below Exhibit 49. Vide the said application, allegations have been made against the Municipal Corporation and the respondent no.1, to the effect that they are in collusion with each other. The second application below Exhibit 38 has been made for incorporating averments to the effect, that the alleged relinquishment deed is not binding on the petitioner. An application below Exhibit 48 is also made for joining the Municipal Corporation as party defendant. All the three applications have been rejected vide order dated 21st July 2009. (4) 6. Mr. R.F. Totla, learned Counsel appearing for the petitioner, submits that the learned Judge of the trial court has grossly erred in rejecting the applications for amendment on the ground that there are no averments in the plaint against the Municipal Corporation and, therefore, an amendment seeking to incorporate allegations against the Corporation cannot be allowed. He submits that the application for addition of the Municipal Corporation as party defendant is also erroneously rejected. 7. Mr. S.N. Pagare, learned Counsel appearing for respondent no.2 Municipal Corporation, submits that the Municipal Corporation has no concern with the dispute between the petitioner and the defendant no.1 and, as such, no interference is warranted. 8. Mr. S.V. Gangapurwala, learned Counsel appearing for respondent no.1, submits that basically the suit is under the provisions of the Maharashtra Rent Control Act, 1999, between a landlord and the tenant and, as such, a relief against the Corporation would go beyond the scope of the said suit. He submits that if the amendment, as such, is allowed, it would change the nature of the entire suit. It is, therefore, submitted that the learned Judge of the trial court has rightly rejected the applications. 9. Admittedly, issues are yet to be framed in the matter. It is settled law that the courts are required to take liberal view in grant of amendment. The only rider is that if the amendment is sought to be made after commencement of the trial, the said amendment cannot be granted if (5) the matter which is sought to be placed on record, could have been placed on record prior to commencement of trial by exercise of due diligence. As already stated herein above, the trial is yet to commence. It is equally settled law, that merits of the matter are not required to be gone into at the stage of consideration of the application for amendment. 10. It can be seen that the amendment, which is sought to be placed on record, is necessary on account of certain facts which are pleaded in the written statement and which were within exclusive knowledge of the original defendant no.1. It is only after the defendant no.1 has disclosed that the defendant no.1 has relinquished his rights in favour of the Municipal Corporation, it was found necessary on behalf of the petitioner to file applications for amendment and addition of party. 11. I find that the learned Judge of the trial court has considered the applications in very casual manner. The learned Judge of the trial court has rejected the applications for amendment on the ground that there are no averments made in the plaint, against the Municipal Corporation, and application for amendment seeking to incorporate averments against the Corporation cannot be allowed. As already discussed herein above, it is only after the written statement was filed, the petitioner has come to know about the facts which are sought to be placed on record. In that view of the matter, I find that the learned Judge of the trial court has grossly erred in rejecting the applications for amendment. 12. I also find that the application for addition of the party is also erroneously rejected. As already pleaded by the defendant no.1 in the (6) written statement, the defendant no.1 has relinquished the rights in favour of the Municipal Corporation. I am, therefore, of the considered view that for effective and complete adjudication of lis between the parties, presence of the Municipal Corporation is necessary and, as such, the Municipal Corporation is a necessary party. It is also necessary in order to avoid multiplicity of litigation. 13. As I have already discussed herein above, it is not permissible for the court to go into the merits of the matter while considering the application for amendment of plaint. Therefore, I do not find it necessary to go into the contention raised by Mr. Gangapurwala, learned Counsel appearing for respondent no.1, that the suit is basically a suit between landlord and tenant and is covered by the provisions of the Maharashtra Rent Control Act, 1999. It is needless to state, that after amendment of the plaint, parties would be at liberty to raise the grounds available to them under law and the court would be bound to consider the same. 14. In the result, the petition is allowed. Rule is made absolute in terms of prayer clause "B". In the circumstances of the case, there shall be no order as to costs. ( B.R. GAVAI ) JUDGE ......................... bgp/wp5247