1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.249 OF 2010 M/s.Sagar Shopping Developers Petitioner versus Rampratapsingh and others Respondents Mr.Navin Parikh i/by M/s.Thakore, Jariwala & Associates for petitioner Ms.V.V.thorat for respondent no.1. CORAM : A.S.OKA, J. DATE : 18th January 2010 PC :- 1. Heard learned counsel for the petitioner. The challenge in this writ petition under Article 227of the Constitution of India is to an order passed by the Trial Court by which the first respondent (original plaintiff) has been permitted to amend the plaint. By the impugned order, the first respondent has been permitted to amend the plaint for seeking a relief of mandatory injunction enjoining the petitioner (fifth defendant) to remove and demolish the construction carried out on the suit plot. A prayer is also permitted to be added of restoration of status-quo ante prior to 2005. 2 2. The learned counsel for the petitioner pointed out that all along the contention of the petitioner is that the first respondent is not in possession of the suit property and the construction is being carried on by the petitioner. The learned counsel for the petitioner submitted that the amendment was applied for after recording of evidence commenced. He submitted that as the respondent no.1 could not establish possession, interim relief was repeatedly denied to the first respondent. He submitted that the case which is now sought to be made out by the amendment that the first respondent was dispossessed in the year 2005 is clearly an afterthought. He submitted that the right accrued in favour of the petitioner on account of lapse of time cannot be sought to be defeated by allowing the amendment. 3. I have given careful consideration to the submissions. The application for amendment made by the first respondent will not be governed by the proviso to Rule 17 of order VI of Code of Civil Procedure, 1908 added by 2002 amendment. The amendment is sought on the allegation that in the year 2005, the first respondent has been dispossessed by the petitioner. The contention of the first respondent is that the construction on the suit plot by the petitioner could not make much progress till April 2008 and in the year 2008, the petitioner restarted construction activities. By the amendment, the 3 first respondent has been permitted to pray for a relief of mandatory injunction of restoration of possession. Even after this amendment is permitted, the issue of bar of limitation remains open and it can be agitated by the concerned defendants by filing additional written statement. Even the issue of valuation remains open and after the amendment is carried out, the Trial Court can always hold an inquiry under section 8 of the Bombay Court Fees Act, 1959 and pass appropriate order. 4. This is not a case where interference can be made in power of superintendence of this Court under Article 227 of the Constitution of India. 5. Hence, I pass following order :- (A) The writ petition is rejected; (B) It is made clear that all contentions of the petitioner including the contention of bar of limitation are expressly kept open. It will be open for the petitioner to file additional written statement within a period of eight weeks from today raising all available contentions; (C) Issue of valuation of the amended plaint will remain open; 4 (D) It will be open for the petitioner to apply for recall of the witnesses examined by the first respondent for further cross examination; (E) All contentions of the parties on merits are expressly kept open. (A.S.OKA, J.)