1 wp1029.10-1030-1492-829.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 1029 of 2010 Smt. Rohini Ganpatrao Heblikar ...Petitioner v/s. Mr. Ravindra Narayan Rajarshi & ors. WITH Writ Petition No. 1030 of 2010 Mrs. Rekha Milind Heblikar ...Petitioner v/s. Mr. Laxman Narayan Rajarshi & ors. ...Respondents WITH Writ Petition No. 1492 of 2010 WITH Writ Petition no. 829 of 2010 Mr. Chetan Mohanlal Desai ...Petitioner v/s. Mr. Vishnu Narayan Rajarshi & ors. ...Respondents Mr. Avinash B. Avhad for the petitioners in all petitions. Mr. S.S. Kanetkar for respondents 1-17 in all petitions. 2 wp1029.10-1030-1492-829.sxw CORAM:- B.R. GAVAI, J DATED :- JANUARY 18, 2011. P.C. Rule. Rule made returnable forthwith. 2. Heard finally by consent. 3. By way of present Petitions, the Petitioners challenges the orders passed in Special Civil Suit Nos.1052/2007, 1056/2007, 1051/2007 and 1053/2007 thereby rejecting the Applications filed by the present Petitioners-Plaintiffs for amendment of the plaint. The Petitioners- Plaintiffs have filed a suit for specific performance of the Agreement dated 12th April, 1991. The suit is originally filed against the defendants 1-18. After the written-statement is filed, an Application came to be filed for amendment. By way of amendment the Petitioners wanted to place on record the averments to the effect that, after the filing of the suit they came to know that the defendants 1-16 have sold the suit property in favour of defendants 19-36. Therefore they desired to seek a prayer that the said sale deed is not binding upon the plaintiffs and also desired to implead the subsequent purchasers as party defendants. It is also sought to be averred that the suit property was brought in to common hotch potch of the 3 wp1029.10-1030-1492-829.sxw partnership firm i.e. defendant no.18 by defendants 1-16 and as such the said property has become the property of said partnership firm, therefore, defendants 1-16 were not entitled to sell the same. The said Application is rejected. The Learned Trial Court found that the additional parties which were sought to be impleaded were not necessary parties inasmuch as the decree could be passed without they being on record. The Learned Trial Court further found that the said Respondents were strangers to the contract between the Petitioner and the Respondents and, therefore, the amendment could not have been granted. The Learned Trial Court further found that by way of amendment, the Petitioner intends to seek declaration of title to the suit property and, therefore, rejected the same. Being aggrieved thereby the present Petition. 4. Shri Avhad Learned Counsel appearing on behalf of Petitioner submits by way of amendment Application the Applicant only wanted to bring events which have come to his notice regarding subsequent transfer of suit property and in order to avoid multiplicity of litigation, the amendment was necessary. He submits that since the trial is yet to commence, the Learned Trial Court ought to have allowed the Application for amendment. 4 wp1029.10-1030-1492-829.sxw 5. Shri Kanetkar, Learned Counsel appearing on behalf of Respondents on the contrary submits that Learned Trial Court has rightly rejected the Application. He submits that firstly by way of an amendment, the Petitioner is seeking to change the nature of the suit, inasmuch as he wants to plead that the defendants 1-16 had no legal right to sale the property. He submits that this is contrary to the stand taken by the Plaintiff in the plaint. He further submits that the strangers to the suit are neither necessary nor proper parties and, therefore, they need not be impleaded as party defendant. The Learned Counsel relies on the case of Kasturi v/s. Iyyamperumal & ors. reported in (2005) 6 SCC 733 and Ramesh Chandra Patnaik v/s. Pushpendra Kumari & ors. reported in (2008) 10 SCC 708. 6. By now it is well settled position of law that Courts are required to take a liberal view in the matter of amendment of pleadings. The only rider is that when the amendment is sought to be made after the commencement of the trial, the amendment would not be allowed, if the party seeking an amendment could have brought on record the matter prior to commencement of trial, with exercise of due diligence. Admittedly, in the present case neither the issues are framed nor any affidavit in lieu of 5 wp1029.10-1030-1492-829.sxw examination-in-chief has been filed. It is, thus, clear that trial is yet to commence. 7. Insofar as Judgment of the Apex Court in the case of Kasturi on which the Learned Counsel for Respondents relies is concerned, in the said suit the Appellant had filed a suit for specific performance against the Respondents 2 & 3. However, in the said suit the Respondents 1 and 4-11 had filed an Application for including them as party Respondent on the ground that they were having title of the suit property and were in possession of the same. The said Application was allowed by the Learned Trial Court. The High Court in Revision upheld the same. Being aggrieved thereby the original plaintiff approached the Apex Court. In that view of the matter, the Apex Court found that the Respondents who wanted to be impleaded as party were totally strangers to the contract between the Appellant and the Respondents 2-3. It could thus clearly be seen that the said Respondents were trying to thrust themselves in the suit of the plaintiff against the wishes of the Plaintiff. The Apex Court, therefore, found that in a suit simplicitor for specific performance, the presence of Respondents who were seeking to be impleaded, would complicate the suit and unwanted issues of title, possession etc. which were beyond the scope of the original 6 wp1029.10-1030-1492-829.sxw suit as filed by the Appellant would be required to be gone into. The Apex Court, therefore, found that the said Respondents were neither necessary nor proper parties and as such set aside the order of impleading them as party. 8. In the present case the Plaintiff who has filed the suit initially against the Respondents 1-18 is seeking to implead the parties who have purchased the properties from the Respondents 1-16. The said Application is filed with an intention to avoid multiplicity of litigations. The Petitioner also seeks consequential relief to set aside the sale deed executed by Respondents 1-16 in favour of added Respondents. It can thus be seen that the relief claimed by the present Petitioner by way of amendment is a relief which is directly linked with the relief which is already claimed in the suit. It is not as if that something new is prayed by the Petitioner. Insofar as the order of the Apex Court in the case of Ramesh Chandra Pattnaik (supra) is concerned, in the said suit also the person who alleges to have entered into agreement with respect to the suit property wanted to implead himself as party Respondent. The Apex Court did not find favour with the said prayer and rejected the same. 7 wp1029.10-1030-1492-829.sxw 9. In the present case I find that since the amendment which is sought to be incorporated, is in the nature which seeks to bring a subsequent transaction on record, with respect to the same transaction and consequential relief and which seeks to implead the purchaser, who have purchased the land from defendants 1-16, would avoid multiplicity of litigation. In any case, the trial is yet to commence and, therefore, the question of exercise of due diligence while allowing the amendment would not be germane. 10. In that view of the matter, I find that Learned Trial Court has grossly erred in rejecting the Application. The Petitions are, therefore, allowed. Impugned orders are quashed and set aside. Rule is made absolute in terms of prayer clause (b). 11. Taking into consideration the controversy raised in the Petitions, the hearing of the suit is expedited. (B.R. GAVAI, J)