ndm 1 11-wp.4774.07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4774 OF 2007 Smt. Ashalata Shivram Chavan. ... PETITIONER Vs. Mr. Dilip Shivram Chavan and ors. ... RESPONDENTS -------------- Mr. S.P. Shrivastava for Petitioner. Ms. P.S. Cordozo, AGP, for Respondent No.2. -------------- CORAM : SMT. R.S. DALVI, J. DATE : 09 th February, 2010. P.C. 1 The Respondent No. 1 is the son of the Petitioner. He is the real contesting respondent. He has been served on 05.11.2009. The Respondent Nos. 3 and 4 were served in December, 2007. Despite service, they failed to appear. Hence, by the order dated 02.06.2008 the Petition was directed to be placed for final hearing. 2 The premises belong to the husband of the Petitioner and the father of the Respondent No.1. The Petitioner claims right of residence in the premises during her lifetime though the premises was transfered in the name of the Respondent No.1 after the death of her husband. The ndm 2 11-wp.4774.07.sxw Petitioner is even statutorily entitled to reside in the premises of which she was in possession under Section 14 of the Hindu Succession Act. Her possession in the suit premises cannot be restricted or obstructed by her son. 3 The Respondent No.1 created third party rights. A leave and licence agreement was executed and thereafter an agreement for sale. It will have to bee seen, whether, this third party interest was created without the knowledge of the Petitioner. The Petitioner has sought amendment of the plaint to implead the purchaser / transferee as a party defendant in the suit and to claim relief against him including the relief of possession since that third party was put in possession by the Respondent No.1 herein. Part amendment prayed for by the Petitioner is allowed; part is dis-allowed. It is observed that the relief of possession cannot be granted to the Petitioner by removal of that third party. Such relief if prayed for, would make the suit a suit for possession. In that case, the Plaintiff would have to pay an ad-volarem Court fee based upon the market value of the property of which the possession is claimed by the plaintiff. Subject to that the amendment could have been allowed. That amendment was specifically not prayed for. However, an amendment cannot be refused because the relief in the suit cannot be granted to the party based upon the subsequent events that have taken ndm 3 11-wp.4774.07.sxw place, which events are allowed to be brought on record. Hence the impugned order dated 23.04.2007 passed in the Chamber Summons allowing part amendment would be required to be modified. The Plaintiff in the suit, who is the Petitioner herein, shall be entitled to amend the plaint as per her Chamber Summons No. 286 of 2006, provided she also amends the clause relating to the payment of Court fees and pays ad- volarem Court fee in the suit for possession. Writ Petition is disposed of accordingly. [ SMT. R.S. DALVI, J ]