Varsha Narwani And Anr vs The State Of Maharashtra And Anr
2022 Latest Caselaw 2378 Bom

                                                                  21. WP-2471-2022.doc

BDP-SPS-TAC




  BHARAT
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
  DASHARATH
  PANDIT

  Digitally signed by



                                    WRIT PETITION NO. 2471 OF 2022
  BHARAT
  DASHARATH
  PANDIT
  Date: 2022.03.11
  17:38:34 +0530




                        VARSHA NARWANI AND ANR              ...Petitioners
                                  V/s
                        THE STATE OF MAHARASHTRA
                        & ANR                               ... Respondents


                                                 WITH
                                     WRIT PETITION NO.2473 OF 2022

                        VARSHA NARWANI AND ANR              ... Petitioners.
                                  V/s
                        THE STATE OF MAHARASHTRA
                        AND ORS.                            ... Respondents


                                                 WITH
                                     WRIT PETITION NO.2472 OF 2022

                        KUSUM NARWANI                       ....Petitioner
                             V/s
                        THE STATE OF MAHARASHTRA
                        AND ANR.                            ...Respondents.


                                                 WITH
                                     WRIT PETITION NO.2474 OF 2022

                        DR. (MRS) SONI NARWANI              ....Petitioner
                             V/s
                        THE STATE OF MAHARASHTRA
                        AND ANR.                            ...Respondents.




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                                                              21. WP-2471-2022.doc


----
Mr. Ashok M. Saraogi for the Petitioner in all the above Writ Petitions.
Mr. Sidha Pamecha a/w Shailesh Prajapati i/b Dua Associates for
Respondent No.2 in Writ Petition No.2471 of 2022.
Mr. Shailesh Prajapati i/b Dua Associates for Respondent No.2 in
connected Writ Petition No.2472 of 2022, 2473 of 2022 and 2474 of
2022.
----
                 CORAM: NITIN W. SAMBRE, J.

                      DATE:       MARCH 09, 2022

P.C.:-

1]       By consent, since all these Petitions involve same issue, they are

disposed of by this common order. For convenience, facts in Writ

Petition No.2471 of 2022 are taken into account.

2] Petitioners/Plaintiffs initiated S.C. Suit, thereby seeking

declaration and injunction in relation to the developed flat. It is the

case of the Petitioners that they had privity with Lok Housing &

Construction Ltd., which project was taken over by the Respondents/

Defendants.

3] Before trial in the suit commenced, Petitioners have taken out

Chamber Summons, seeking amendment thereby incorporating the

word "Predecessor" and amplifying existing pleadings by virtue of

21. WP-2471-2022.doc

insertion of para 7A, which prayer is rejected vide impugned order.

4] Submissions of Counsel for the Petitioners are, basic foundation

as regards existence of contract between Petitioners and the

predecessor of Respondents was very much pleaded. However, what is

sought to be inserted by way of amendment is, clarification to the

existing pleadings. According to him, since suit is at initial stage,

amendment ought to have been granted.

5] The prayer is opposed by the Counsel for

Respondents/Defendants. According to him, amendment is by way of

afterthought and with an intention to coverup the lacunae which were

existing in the pleadings in the plaint. Drawing support from the

judgment of the Apex Court in the matter of J. Samuel and Ors. vs.

Gattu Mahesh and Ors reported in JT 2012(1) SC 169, he would urge

that typographical error cannot be permitted to be corrected at this

stage of the proceedings as said pleading of the Petitioners/Plaintiffs is

to the benefit of the Respondents/Defendants.

6]    I have appreciated the said submissions.


                                                        21. WP-2471-2022.doc

7] Court is required to be sensitive to the fact that trial in the suit is

yet to commence. Only pleadings are complete and issues are yet to

be framed. Petitioners/Plaintiffs have already laid foundation in the

plaint as could be noticed from the existing pleadings that the

Petitioners/Plaintiffs have contract with Lok Housing & Construction

Ltd. i.e. predecessor of the Respondents/Defendants and the project in

question has been taken over by the Respondents/Defendants.

8] In that view of the matter, Court below, in my opinion, has

committed an error in refusing amendment. That being so, order

impugned passed in the Chamber Summons rejecting prayer for

amendment is quashed and set aside. Chamber Summons stands

allowed, subject to payment of costs of Rs 3000/- to be deposited in

the Trial Court within a period of two weeks from today which the

Respondents would be entitled to withdraw. Deposit of costs is

condition precedent for carrying out amendment. Amendment be

carried out after deposit of costs within one week. Needless to clarify

that Respondents/Defendants shall be entitled to place on record

consequential additional Written Statement or may carry out

21. WP-2471-2022.doc

amendment to the existing Written Statement within a period of three

weeks from the date of carrying out amendment by the

Petitioners/Plaintiffs.

9] All these Petitions stand allowed in the aforesaid terms.

( NITIN W. SAMBRE, J. )