1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Letters Patent Appeal No. 182 of 2009 IN Civil Application No. 314 of 2009 IN Writ Petition No. 2866 of 2007 [pending] [Vijay Ramchandra Dakshindas & another Vs. Shri Rajesh Bhusari & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. R.B. Pendharkar, Senior Adv., with Mr. G. Belsare, Adv., for the appellants. Mr. S.S. Doifode, AGP for respondent nos. 1 and 4. Mr. Ghate, Adv., for respondent nos. 2,3 and 6. Mr. S.Y. Deopujari, Adv., for respondent no.5. Mrs. Gauri Venkatraman, Adv., for respondent no.7. ----- CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATE : 08th September, 2009. 1. Heard. 2. Adv. Mr. S.Y. Deopujari appearing for respondent no.5-Bank has raised a Preliminary Objection, contending that as amendment has not been allowed, the impugned order is not the judgment open to challenge under Clause 15 of 2 the Letters Patent. 3. The learned Senior Adv., Mr. R.B. Pendharkar for appellants has relied upon the Judgment of Hon ble Apex Court in the case of Jugal Kishore Paliwal Vs. S. Sat Jit Singh & another [(1984) 1 SCC 358] and that of the Division Bench of Calcutta High Court in case of M/s. Tara Properties Pvt. Ltd. Vs. M/s. Allied Resins & Chemicals Ltd. [AIR 1989 Calcutta 192], and states that the controversy is no more res in tegra. 4. With the assistances of learned Senior Counsel, we have perused both the Judgments, and we find that the objection being raised is misconceived. 5. On merits, the learned Senior Adv., for appellants has pointed out that in the Writ Petition, respondent no.5, though served in 2007 itself, filed a reply in December, 2008, wherein it stated that Reserve Bank of India was a necessary party. The appellants-petitioners then filed a Rejoinder on 21st January, 2009, and after Rejoinder, Additional Affidavit-in-Reply was filed by respondent no.5, specifically mentioning therein that said Additional Reply was necessitated because of subsequent developments. The subsequent developments pointed out in said Additional Reply dated 27th January, 2009 are in relation to a communication 3 dated 24th December, 2008 and a communication of Reserve Bank of India dated 1st January, 2008. After getting knowledge of said communications and its impact on the controversy, the appellants filed an objection pointing out provisions of Rule 13 of Chapter-XVII of the Bombay High Court Appellate Side Rules, and shortly thereafter also filed an application for amendment raising appropriate challenges to those communications and also seeking leave to join respondent no.7  M/s. Neev Promoters & Developers as party, with Reserve Bank of India as respondent no.8 and Commissioner of Co- operation & Registrar of Co-operative Societies as respondent no.9. Learned Senior Adv., states that this application has been partly allowed and only respondent no.7 has been allowed to be joined as party-respondent. The rest of the claim has been rejected. According to learned Senior Adv., the learned Single Judge has gone on merits of the controversy at a stage at which it is not permissible and this has resulted in refusal to exercise jurisdiction. 6. Adv. Mr. Deopujari for respondent no.5, Adv. Mr. Ghate for Respondent nos. 2,3 and 6 and learned AGP Mr. Doifode for Respondent nos. 1 and 4 have contended that as amendment was belated and inconsistent with the prayers made in the Writ Petition, the amendment has been rightly rejected. 4 7. Adv. Mrs. Gauri Venkatraman for respondent no.7 states that respondent no.7 has no objection if the entire amendment is allowed. 8. Perusal of record clearly shows that subsequent communications pointed out by respondents through their replies are sought to be challenged by the petitioners. The prayers made in the original petition show challenge to deposit adjustment and subsequent communications have got a bearing on said scheme for deposit adjustment. As those communications were pointed out to learned Single Judge through replies by respondent no.5, the amendment has been sought. It is, therefore, apparent that the amendment cannot be said to be inconsistent with the reliefs sought for in the main petition. The learned Single Judge has attempted to examine the correctness of said challenge, though at that stage, such exercise was not open. 9. Therefore, we quash and set aside the order 6th February, 2009 to the extent it rejects the prayer for amendment, and allow the application for amendment filed vide Civil Application No. 314 of 2009 by present petitioners in Writ Petition No. 2866 of 2007. Necessary amendment in Writ Petition be carried out by 22nd September, 2009. Respective respondents are at liberty to file Additional Submissions by 7th October, 2009, if they find it necessary. The Court thereafter shall proceed 5 further with the matter in accordance with law. 10. Rule accordingly. No costs. Judge Judge |Hedau|