Desai

Order - Status 6: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5308 OF 2008 Rashmi Gruh Nirman Pvt.Ltd. through its Director Shri Ashwin Tribhuvandas Shah ...Petitioner Versus Unique Shanti Developers through its proprietor Harshad P.Doshi ...Respondent ...... Mrs.Neeta Karnik for Petitioner. Mr.Vineet B.Naik with Mr.Amit Yadkikar i/b M/s.Desai & Diwanji for Respondent. ...... CORAM: A.M.KHANWILKAR, J. AUGUST 7, 2008. P.C. Heard Counsel for the parties. Rule. Rule made returnable forthwith, by consent. Mr.Yadkikar waives notice for Respondent. As short question is involved, Petition is taken up for final disposal forthwith, by consent. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Joint Civil Judge, Senior Division, Thane dated 27th February 2008 below Exhibit 353 in Special Civil Suit No.362 of 2000. By this order, the Trial Court has rejected the Application preferred by the Petitioner for amendment of written statement. By the said Application, the Petitioner intended to insert Paragraph 20A in the written statement which reads thus: "20A. That the suit filed by Unique Shanti Developer is not maintainable as the plan which is shown to have been sanctioned in the name of unique Shanti Pvt Ltd and the said plan is also sanctioned much after alleged suit agreement and hence the said suit agreement are not binding. Moreover by virtue of provisions of Urban Land (Ceiling and Regulations) Repeal Act 1999, the provisions of Urban Ceiling Act are not applicable to suit lands, this has been done by State of Maharashtra by its government gazette dated 6.12.2007 wherein it has been declared that "Now, therefore in pursuance of clause (2) of article 252 of the Constitution of India, the Maharashtra Legislative Assembly hereby resolves that the Urban Land (Ceiling and Regulations) Repeal Act 1999, passed by the parliament be adopted for this state." The Trial Court, however, has rejected the said application essentially on two counts. Firstly, that admission given in the cross-examination cannot be termed as subsequent event to permit bringing on record new facts now pleaded in the proposed amendment. The second reason is that the issuance of Notification referred to in the latter part of Paragraph 20A cannot be the basis to permit amendment to the written statement. Insofar as the first reason is concerned, I am in agreement with the submission of the Petitioner that it is for the first time during the course of cross-examination, the Respondent produced sanctioned plan on 16th October 2007. No reference to the said sanctioned plan was made in the Plaint or produced along with the documents on any earlier occasion. The position now stated in proposed Paragraph 20A is with reference to the said sanctioned plan which has come on record for the first time on 16th October 2007. That indeed was a revelation made to the Petitioner for the first time during the course of trial. Therefore, the Petitioner was entitled to raise such issues as were available to the Petitioner in relation to the said fact. That is the purport of amendment to be introduced in the written statement in terms of Paragraph 20A. By that amendment, the Petitioner would contend that the Suit filed by the Respondent itself is not maintainable as plan was sanctioned in favour of person other than the Respondent/Plaintiff. That fact necessarily has to be pleaded and also proved by the Defendant for which amendment as sought will have to be granted in the interest of justice. Insofar as the opinion recorded by the Trial Court in the context of the latter part of the Paragraph 20A, I am in agreement with the Petitioner that the merits of the efficacy of the Notification dated 1st December 2007 will have to be decided at the trial. The fact remains that the Notification has been issued recently on 1st December 2007. That is a subsequent event which is pleaded in proposed Paragraph 20A. Thus understood, even that part of the amendment will have to be granted. In the circumstances, the impugned Judgment and Order is set-aside and instead Application Exhibit 353 filed by the Petitioner is made absolute with further direction that the Petitioner shall carry out amendment within three weeks from today. The Petitioner who is personally present in Court, through Counsel, assures that the Petitioner will extend full co-operation to the Trial Court for early disposal of the Suit and shall not take recourse to any further applications during the course of trial to ensure that the trial is concluded expeditiously. That assurance is accepted. Needless to observe that as the Petitioner is permitted to amend the written statement by inserting Paragraph 20A and the written statement has been treated as counter claim, the Respondent would be free to file such pleadings in response to the said amended written statement as may be advised. That be done within two weeks from the date the Petitioner carries out amendment in the written statement. Petition disposed of on the above terms. No order as to costs. A.M.KHANWILKAR, J.