1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6555 OF 2009 Chandrakant Baburao Jadhav & Ors. .. Petitioners versus Yeshwantrao Dattajirao Bhosale & Ors. .. Respondents Mr.V.B.Rajure for the petitioners. Mr.Madhav Jamdar for the respondents. CORAM : A.S.OKA, J. DATE : 2nd September 2009. ORAL JUDGMENT: . The learned counsel appearing for the petitioners prays that he may be permitted to delete 4th and 5th respondents who are the plaintiffs alongwith the petitioners. Permission is granted. Heard learned counsel appearing for the petitioners and learned counsel appearing for the 1st to 3rd respondents who are the original defendants. The challenge in this petition under Article 227 of the Constitution of India is to the order dated 17th July 2009 passed below application at Exhibit 94 made by the petitioners. The application at Exhibit 94 was made by the petitioners for amendment of the plaint. 2. The petitioners and 4th and 5th respondents filed a suit relating to the 2 property more particularly described in paragraph 1 of the plaint. The suit is filed for perpetual injunction restraining the 1st to 3rd respondents from interfering with the alleged possession of the petitioners. The suit is filed for declaration that the orders passed by the competent authority under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 are not binding on the petitioners and 4th and 5th respondents. A prayer is also made that the scheme sanctioned under section 20 of the said Act of 1976 is not binding on the petitioners. An application at Exhibit 94 was made for amendment of the plaint for incorporating a relief in the alternative of a decree for possession. Consequential amendments to the valuation clause and to the prayer clauses in the plaint were prayed for. The learned trial Judge rejected the application by the impugned order by observing that the application was barred by the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). 3. The submission of the learned counsel appearing for the petitioners is that there was sufficient explanation for the delay in the application for amendment. He pointed out that the suit remained stayed under the orders of this Court till 22nd November 2008. He submitted that only after the application for temporary injunction at Exhibit 5 was finally decided against the petitioners and 4th and 5th respondents, the present application for amendment is made. He pointed out that the petitioners and the 4th and 5th respondents desire to pray for decree for possession in the event the trial 3 Court comes to the conclusion that the petitioners are not in possession of the suit property. He submitted that amendment can be always permitted. He has placed reliance on various decisions including the decision of the Apex Court in the case of Baldev Singh & Ors. Vs. Manohar Singh [2006 (5) Maharashtra Law Journal 634]. He submitted that the Apex Court has held that the expression “commencement of the trial” used in proviso to Rule 17 of Order VI of the said Code must be understood in a limited sense as meaning final hearing of the suit, examination of witnesses and filing of documents. He submitted that there was no justification for rejecting the prayer for grant of amendment. 4. The learned counsel appearing for 1st to 3rd respondents pointed out application at Exhibit 5 for temporary injunction made by the petitioners was rejected in the year 2003 and the writ petition filed by the petitioners arising out of the said order was rejected in March 2004 and nothing prevented the original plaintiffs from filing the application for amendment in the year 2003 or 2004. He pointed out that on 21st October 2003 the application was made by the petitioners for referring the issue of tenancy to the concerned Tribunal. After rejection of the said application, a writ petition was filed in this Court. In the said writ petition, the suit remained stayed till 21st November 2008. When the petition was dismissed and stay was vacated. He pointed out that an application was made at Exhibit 65 for framing additional issues. A writ petition was filed for challenging order of rejection of application which 4 also came to be dismissed. He pointed out that the issues were framed on 26th February 2003 and thereafter on applications made by the petitioners plaintiffs adjournment were granted. He submitted that considering the aforesaid conduct of the petitioners, it is obvious that the application for amendment was malafide and could not have been allowed. 5. I have carefully considered the submissions. The trial Court has noted that issues were framed on 26th February 2003 and suit was kept on 25th March 2003 for filing a list of witnesses. Thereafter, on one occasion adjournment was granted to the petitioners plaintiffs for producing affidavit in lieu of examination in chief. The application for temporary injunction was rejected on 3rd February 2003 and the writ petition filed by the petitioners which arose out of the said order was rejected on 23rd March 2004. However, it must be noted that on a writ petition filed by the petitioners, on 25th November 2003 the proceedings of the suit were stayed and the said stay was vacated on 21st November 2008. The said writ petition was filed by the petitioner for challenging an order below Exhibit 60 by which the application for amendment of plaint was rejected. The writ petition was allowed on 21st November 2008. Thereafter, an application was filed by the petitioners for recasting the issues which came to be dismissed in March 2009. The application for amendment has been filed on 8th June 2009. 6. Thus, the recording of evidence has actually not commenced. For 5 considerably long time, the suit remain stayed under the order of this Court. The stay was vacated in November 2008 and the present application was filed in June 2009 before actual recording of evidence could start. The only amendment sought by the petitioners is of incorporating a prayer for decree for possession. The suit is of the year 2003. As the actual recording of evidence has not commenced, the trial Court ought to have allowed the amendment to avoid the multiplicity of the proceedings. Considering the fact that the suit remained stayed for a period of about five years, may be at the instance of the petitioners, there was more than sufficient explanation for the delay in filing the application for amendment. Before 21st November 2008 the present application could not have been filed as till that date the suit remained stayed. The amendment ought to have been allowed subject to payment of heavy costs. The costs can be quantified at Rs.7,500/-. 7. Hence, I pass the following order: : O R D E R : (a) The impugned order is quashed and set aside and the application made by the original plaintiffs at Exhibit 94 is allowed subject to the petitioners paying costs of Rs.7,500/- to the 1st to 3rd respondents within a period of eight weeks from today. Payment of costs will be condition precedent. 6 (b) The petitioners will carry out amendment within a period of two weeks from the date on which writ of this order is received by the trial Court. It will be open for the 1st to 3rd respondents to file additional written statement within a period of eight weeks from the date on which amended copy of the plaint is served to them. (c) All contentions of the parties on merits are expressly kept open. (d) The writ petition is allowed in above terms. (e) The hearing of the suit shall be concluded by the end of February 2010. (A.S.OKA,J)