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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.12605 OF 2025

Satyanarayan Gangaram Gunnal ...Petitioner

versus

Commissioner, Pune Municipal Corporation

and Ors. … Respondents

Mr. Niranjan Mogre for Petitioner.

Mr. R.M.Pethe, for Respondent Nos.1 to 3.

Ms.Lalita Panchakshari, for Respondent Nos.4 to 7.

CORAM: N.J.JAMADAR, J.

RESERVED ON : 17 MARCH 2026

PRONOUNCED ON : 8 JUNE 2026

JUDGMENT :

1.Rule. Rule made returnable forthwith, and, with the consent of the

learned Counsel for the parties, heard finally.

2.By this Petition under Article 227 of the Constitution of India, the

Petitioner assails the legality, propriety and correctness of the order dated 4

July 2025 passed by the learned Civil Judge, Pune, whereby the substantive

part of the prayer for amendment in the plaint in SCS No.1467 of 2023

instituted by the Petitioner, came to be rejected.

3.Shorn of unnecessary details, the background facts can be stated, as

under :

3.1The Petitioner claimed that he was in the occupation of two rooms,

admeasuring 300 sq.ft. (the demised premises) in an old house, situated at

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CTS No.1164, Nana Peth, Pune (the suit premises). There were in all six

tenants in the various portions of the demised premises. Late Sadashiv

Rajaram Mithapelli was the original landlord. After the demise of the original

landlord, Defendant Nos.4 to 9 became the landlord and the owner of the

demised premises. Defendant No.3, a partnership firm, which is engaged in

the business of builders and developers, undertook the development of the

suit premises. Multiple Development Agreements were executed in favour of

Defendant No.3 by the owners of the suit premises.

3.2The Plaintiff claimed, Defendant No.3 also approached the Plaintiff with

an offer to provide 600 sq.ft. carpet area, which was double the area of the

demised premises, without any monetary consideration, in lieu of the

surrender of the demised premises to the Plaintiff. Defendant No.3 also

agreed to provide transit rent @ Rs.10,000/- per month, from the date of

delivery of the possession of the demised premises till the completion of the

new building.

3.3Accordingly, on 30 November 2021, a Memorandum of Understanding

(MOU) came to be executed between the Plaintiff and Defendant No.3,

incorporating all the aforesaid terms. It is the claim of the Plaintiff that

Defendant No.3 reneged from its promises. Upon demand of the transit rent,

as agreed, Vishal G. Dhanwade – Defendant No.3(a) flatly refused to pay the

transit rent and asserted that a residential unit of 330 sq.ft. only, would be

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provided to the Plaintiff and if the Plaintiff wanted more area, he should pay

an amount of Rs.32 Lakhs.

3.4It further transpired that, Defendant No.3 had changed the pages of the

MOU and forged the said MOU by replacing page Nos.3 and 4. Thus,

asserting that the MOU dated 30 November 2021, propounded by Defendant

No.3 was forged and fabricated and on the basis of false and forged

documents, Defendant No.3 had obtained the permission for development, far

in excess of the entitlement for development, the Plaintiff prayed for

declaration that the building permission obtained by Defendant No.3 from

Defendant Nos.1 and 2 was illegal, null and void, and not binding on the

Plaintiff as it was based on false and forged documents and deliberate

misrepresentation. The consequential reliefs of injunction to restrain

Defendant No.3 from carrying out further construction and recovery of the

arrears of transit rent @ 10,000/- p.m. along with interest, and compensation

of Rs.3 Lakhs, were also sought

3.5After the institution of the suit, it appears that the Plaintiff filed an

application under Order XXIII Rule 1 (3) of the Code of Civil Procedure, 1908,

seeking permission to withdraw the suit with liberty to file a fresh suit. By an

order dated 28 November 2024, the said application came to be rejected

opining, inter alia, that the Plaintiff could seek additional area and alternative

prayer for specific performance of the purported MOU by filing an application

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for amendment.

3.6Thereupon, the Plaintiff took out instant application for amendment in

the plaint seeking, inter alia, the prayer for specific performance of the

purported MOU and a direction to Defendant No.3 to execute a registered

deed, providing 600 sq.ft. flat / residential unit as per the MOU dated 30

November 2021 in the newly constructed building. The Plaintiff also sought

to delete the earlier prayers of declaration that the development permission

was obtained on the basis of false and forged documents; the MOU dated 30

November 2021 was illegal, null and void and the relief of perpetual injunction

to restrain Defendant No.3 from carrying out construction pursuant to the

development agreement granted by Defendant Nos.1 and 2. Certain

incidental and consequential amendments were also sought.

3.7The application was resisted by Defendant Nos.3(a) to 3(c).

3.8By the impugned order, the learned Civil Judge was persuaded to partly

allow the application for amendment, only to the extent of the amendment

proposed in the title clause, para No.1B, and line No.2 of para 13. Rest of the

proposed amendment was rejected.

3.9The learned Civil Judge was of the view that, by the proposed

amendment, the Plaintiff was seeking to substitute the relief of cancellation of

the MOU with the relief of specific performance of the very same MOU, qua

which a declaration was initially sought that it was forged and fabricated. The

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prayers proposed to be incorporated by way of amendment were inconsistent

with the original prayers. In substance, the Plaintiff was proposing to convert

the original suit for declaration, perpetual injunction and damages into one for

specific performance of the MOU. It was impermissible to permit such

amendment as it would completely alter the nature and character of the suit.

Thus, the learned Civil Judge, Pune, was persuaded to partly allow the

application only with regard to the change in the description of the party –

Defendants and the assertions / reliefs which flowed from the original

pleadings.

3.10Being aggrieved, the Plaintiff has invoked the writ jurisdiction.

4.Respondent Nos.4 to 7 have filed an affidavit in reply opposing the

Petition.

5.I have heard Mr. Niranjan Mogre, learned Counsel for the Petitioner, Mr.

R.M.Pethe, learned Counsel for Respondent Nos.1 to 3 and Ms. Lalita

Panchakshari, learned Counsel for Respondent Nos.4 to 7, at some length.

With the assistance of the learned Counsel for the parties, I have also

perused the material on record, including the averments in the original plaint,

changes sought to be introduced by way of proposed amendment and the

impugned order.

6.Mr. Mogre, learned Counsel for the Petitioner, submitted that, the

learned Civil Judge has completely misconstrued the nature of the Plaintiff’s

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claim. In essence, Mr. Mogre would urge, the Plaintiff has been pursuing his

rights in the capacity of the tenant of the demised premises, which accrue

upon the redevelopment of the suit premises. The learned Civil Judge has

approached the application for amendment in the plaint from an incorrect

perspective. Indeed, the Plaintiff was proposing to seek enforcement of

contractual obligations of Defendant No.3 to deliver the possession of 600

sq.ft. residential unit and the transit rent. However, that did not imply that the

Plaintiff was completely altering the nature of the suit and the Plaintiff has set

up a new cause of action. The proposed amendment, Mr. Mogre would urge,

has its foundation in the pleadings in the unamended plaint. Thus, the

learned Civil judge could not have rejected the application for amendment in

the plaint at a pre-trial stage.

7.As a second limb of the submission, Mr. Mogre would urge, the trial

Court, on the one hand, did not permit the Plaintiff to withdraw the suit with

liberty to institute a fresh suit on the same cause of action under Order XXIII

Rule 1(3) of the Code, while observing that the Plaintiff could incorporate

additional pleadings in support of the claim for 600 sq.ft. area and additional

or alternative prayer for specific performance of MOU by moving an

application for amendment in the plaint, and, on the other hand, the Plaintiff’s

application seeking amendment in the plaint, came to be rejected by

observing that the proposed amendment would materially alter the nature of

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the suit. If the proposed amendment is not allowed, the Plaintiff would be

rendered remediless, submitted Mr. Mogre.

8.Mr. Pethe, learned Counsel for Respondent Nos.1 to 3 supported the

impugned order.

9.Ms. Panchakshari, learned Counsel for Respondent Nos.4 to 7 also

supported the impugned order. It was submitted that the Petitioner, with a

view to wriggle out of the situation that arose on account of filing of an

application under Order VII Rule 11 of the Code for the rejection of the plaint,

the Plaintiff initially filed an application for withdrawal of the suit, with liberty to

file a fresh suit and upon the same being rejected, sought amendment in the

plaint. The proposed amendment alters the character of the suit completely.

Since the Petitioner – Plaintiff under the guise of amendment intends to

convert the suit for declaration and injunction into one for specific

performance of the contract by setting up the terms which are not borne out

by the MOU, the learned Civil Judge has not committed any error in rejecting

the application for amendment, seeking wholesome conversion of the suit,

submitted Ms. Panchakshari.

10.To start with the uncontroverted facts. The jural relationship between

the Plaintiff and Defendant No.4 to 9 is not in dispute. The Plaintiff claims to

be a tenant in respect of the two rooms situated in the suit premises, albeit

there is a controversy regarding the area of those two rooms. Nor is it in

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dispute that Defendant Nos.4 to 9 – landlord and owners of the suit premises,

have executed Development Agreements in favour of Defendant No.3 firm, for

development of the suit premises. Indisputably, Defendant No.3 made an

offer to the Plaintiff and the latter has vacated the demised premises. On the

basis of the development agreement executed by the landlord and owners,

and the subsequent developments, Defendant No.3 has obtained permission

for the development from the planning authority – represented by Defendant

Nos.1 and 2.

11.The Plaintiff claimed that, he had also entered into a MOU with

Defendant No.3 on 30 November 2021. The said instrument remained in the

custody of Defendant No.3 only. It is the case of the Plaintiff that Defendant

No.3 had initially agreed to provide 600 sq.ft. Carpet residential unit and, upon

delivery of the possession of the demised premises, Defendant No.3 would

pay transit rent @ Rs.10,000/- per month. Defendant No.3 reneged from the

said promise. It further transpired that the Defendant No.3 had forged page

Nos.3 and 4 of the said MOU on which the aforesaid terms were incorporated

and the Plaintiff has put his signatures. Thus, on the basis of the forged and

fabricated MOU, Defendant No.3 professed to deprive the Plaintiff of the

larger area upon redevelopment, and the transit rent.

12.With the aforesaid version, in the original plaint, the Plaintiff sought a

declaration that Defendant No.3 has obtained building permission from

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Defendant Nos.1 and 2 on the basis of the false and forged documents, the

building permission was illegal, and, thus, Defendant No.3 be restrained from

carrying out construction over the suit premises on the basis of the sanctioned

plan so obtained. The Plaintiff has also sought declaration that Defendant

No.3 had obtained MOU dated 30 November 2021 by practicing fraud on the

Plaintiff. The said MOU dated 30 November 2021 was void, ab initio and did

not bind the rights of the Plaintiff. In addition, the Plaintiff sought arrears of

transit rent and compensation of Rs.3 Lakhs.

13.In order to appreciate the controversy in a correct perspective, it may

be apposite to extract the pleadings in the original plaint, proposed

amendment and the decision thereon by the trial Court. They read as under :

Sr. No.Para of plaintOriginal pleading Amendment sought Allowed /

Rejected

1Title Clause

(Defendant

No.1)

The suit was filed

naming “ek- vk;qDr”

(Hon. Commissioner)

as Defendant No.1

directly, without

specifying mode of

service of

summons/notice on

Pune Municipal

Corporation.

Deletion of the words

“ek- vk;qDr” and

addition of the words

“(Summons/notice to be

served upon Hon.

Commissioner, Pune

Municipal Corporation)”

in the title clause, so as

to correct the

nomenclature to Pune

Municipal Corporation

through Commissioner.

Allowed

2Title clause

(Defendant

No.2)

Defendant No.2 was

described as “ek-

dk;Zdkjh vfHk;ark”

(Executive Engineer),

without further

Addition of the words

“rFkk in funsZf’kr

vf/kdkjh” (and the

Officer holding the said

Post) after the words

Allowed

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designation or mode of

service.

“ek- dk;Zdkjh vfHk;ark”

and addition of

summons / notice

service wording.

3Para 1B (Line

3)

The plaint pleaded that

the plaintiff was tenant

in two rooms of 300

sq.ft. In the suit

property, (without

specifying that each

room was 300 sq.ft.

And total area was 600

sq.ft.)

Addition of the words

“each” (izR;sdh) after

“02 rooms” (02

[kksY;k ;kalh) and

addition of the words

“total 600 sq.ft.” (,dw.k

600 pkS-QqV) after “300

sq.ft.” (300 pkS-QqV) in

line 3 of para 1B.

Allowed

4Para 13 (Line

2)

Para 13 referred to the

MOU dated

30.11.2021 and

alleged that certain

pages were replaced /

substituted by

Defendant No.3, but

did not specifically

identify which page

numbers were falsely

replaced.

Addition of the words

“page nos.03 and 04

(dza-03 o 04) after the

word “pages” (ikus) in

line 2 of para 13, to

specifically identify the

pages allegedly

replaced by Defendant

No.3.

Allowed

5Para 12 (Lines

12-13)

Para 12 contained the

pleading that the

construction plan and

all permissions were

prepared by Defendant

No.3 on the basis of

false and fabricated

information, which

were essentially

unlawful.

Deletion of the entire

original pleading in

Para 12 (lines 12-13)

referring to preparation

of construction plan on

false information and its

illegality.

Rejected

6Para 13 (Line 7

Onwards)

Para 13 contained

pleading that false

proposal / submission

was made and

construction plan /

permissions obtained

unlawfully, causing

loss; challenged the

MOU and the illegal

Deletion of original text

and substitution with

new averment that

Defendant No.3

showed excess tenants

to obtain extra FSI,

illegally obtained

construction

permission, and,

Rejected

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construction. commenced illegal

construction on the

property.

7Para 14 (Line

5)

Para 13 pleaded that

the violations

committed were

essentially lawful

(“mYy?kau d:u

dsysY;k rs csdk;ns’khj

vkgsr”).

Deletion of the existing

text and the substitution

with the averment that

the terms and

condtiions of the MOU

have “not been

complied with at all”

(rarksrar ikyu dsysys

ukgh)

Rejected

8Para 15 (Line

4)

Para 15 contained the

original pleading about

illegal construction

undertaken on the suit

property after

misrepresenting facts

before the authority

and obtaining unlawful

permissions.

Deletion of the original

text and substitution

with an extensive new

averment that

Defendant No.3

obtained full FSI

illegally, failed to give

600 sq.ft. Carpet flat as

per MOU dated

30.11.2021 as well as

transit rent w.e.f.

01.12.2021 @

Rs.10,000/- p. m. and

that Defendant No.3

was obligated under

MOU to give 600 sq.ft.

Carpet flat, failed to

deliver the same, and

plaintiff is entitled to

transit rent of

Rs.10,000/- p.m. from

date of filing till filing of

the suit, totalling

Rs.1,90,000/- with 12%

interest = 2,18,500/-

and from date of filing,

Defendant No.3 is liable

to further pay

Rs.10,000/- per month

till delivery, and the

pages 3 and 4 of the

MOU were replaced /

Rejected

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fabricated.

9Para 16 (line 9

onwards)

Para 16 contained the

original averment

containing the

apprehension that

Defendant No.3 may

not execute registered

deed with Plaintiff and

may create third party

rights over all the

residential flats.

Addition of a new

averment in Para 16

stating that the Plaintiff

is entitled to have a

registered deed

executed by Defendant

No.3 for 600 sq.ft.

(carpet) flat/residential

gala, and should keep

one flat of 600 sq.ft.

Carpet area available

for the Plaintiff, and for

that Plaintiff is

constrained to file the

suit for permanent and

temporary injunction

Rejected

10Prayer Clause

1

Original Prayer Clause

1 : “oknh ;kapk vtZ

[kpkZlg eatwj djkok” -

prayer that the

Plaintiff’s application

be allowed with costs.

Further addition sought

in the prayer for

direction to Defendant

No.3 to execute a

registered deed for

providing 600 sq.ft.

(carpet) flat / residential

gala to Plaintiff as per

MOU dated 30.11.2021

in the newly

constructed building in

favour of Plaintiff.

Rejected.

11Prayer Clause

2

Original Prayer Clause

2 : Prayer for

declaration that all

development

permissions obtained

from Defendant Nos.1

and 2 on the basis of

false documents be

declared illegal.

In the 4

th

line, the text

after “permission is”

should be deleted, and

instead the text “is not

as per the provisions in

the Unitifed

Development Control

and Promotion

Regulations, 2020,

such declaration be

granted.” should be

permitted to be

included.

Rejected

12Prayer Clause

3

Original prayer Clause

3: Prayer for

Deletion of original

Prayer Clause 3 and

Rejected

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permanent injunction

against Defendant

No.3 restraining them

from proceeding with

construction on the

suit property on the

basis of the illegal

construction

permissions;

substitution with prayer

for direction to

Defendant No.3 to keep

available 600 sq.ft.

(carpet) flat / residential

gala for the Plaintiff,

and for permanent and

temporary injunction

restraining Defendant

No.3 from creating

third-party interest in

respect thereof.

13Prayer Clause

5

Original Prayer Clause

5 : Prayer for a

declaration that the

MOU dated

30.11.2021 executed

by Plaintiff with

Defendant No.3 is

false, fabricated,

forged and not binding

on the Plaintiff, being a

fraudulent document.

Deletion of original

Prayer Clause 5 and

substitution with prayer

for a declaration that

pages 03 and 04 of the

MOU dated 30.11.2021

are forged, fabricated

and not binding on the

Plaintiff.

Rejected

14Prayer Clause

6

(New/Additiona

l)

Prayer seeking arrears

of transit rent till filing

of suit with interest.

(There was no prayer

for further direction to

Defendant No.3 to pay

transit rent @ Rs

10000/- p.m. from the

filing of suit till delivery

of flat).

Addition of a new

Prayer Clause 6

seeking direction to

Defendant No.3 to pay

Rs.10,000/- per month

as transit rent from the

date of filing of the suit

until delivery of the 600

sq.ft. (carpet) flat /

residential gala to the

Plaintiff.

Rejected.

14.The learned Civil Judge was of the view that the proposed amendment

which has been rejected, would completely alter the nature and character of

the suit and amount to conversion of a suit for declaration and perpetual

injunction into one for specific performance of the agreement, which the

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Plaintiff alleged was false and forged by Defendant No.3.

15.Whether the aforesaid approach of the learned Civil Judge is

justifiable ? It is trite, all amendments which are necessary for the

determination of real controversy between the parties are required to be

allowed. There are two over-arching considerations. First, whether the

proposed amendment is necessary for the determination of the real

controversy between the parties, and, second, whether the proposed

amendment has the potentiality to cause such prejudice to the adversary that

it cannot be compensated. The question whether the proposed amendment

materially alters the nature and character of the suit and whether the relief

claimed by way of proposed amendment would be barred by law of limitation,

also significantly bear upon the determination. The stage of the proceeding at

which amendment is sought, especially in view of the insertion of the proviso

to Order VI Rule 17 of the Code, assumes significance.

16.Ordinarily, all pre-trial amendments which are necessary for

determination of the real question in controversy between the parties are

required to be permitted, in the absence of potentiality of grave prejudice to

the adversary. At a pre-trial stage, the Court is expected to adopt a little more

liberal approach. The discretion to permit amendment in the pleading is,

however, required to be exercised in a judicious manner and to promote the

cause of justice. The principle that the procedure is a handmaid of justice and

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thus, it should not be allowed to score a march over substantive justice also

informs the decision.

17.In the case of Pirgonda Hongonda Patil V/s. Kalgonda Shidgonda

Patil

1

, the Supreme Court enunciated the consideration which ought to have

weighed while deciding amendment in the pleading. It was enunciated that

the ultimate test is, can the amendment be allowed without injustice to the

other side or can it not ? The relevant observations in para No.10 read as

under :

“10…..All amendments ought to be allowed which satisfy the

two conditions (a) of not working injustice to the other side,

and (b) of being necessary for the purpose of determining

the real questions in controversy between the parties............

but I refrain from citing further authorities, as, in my opinion,

they all lay down precisely the same doctrine. That doctrine,

as I understand it, is that amendments should be refused

only where the other party cannot be placed in the same

position as if the pleading had been originally correct, but the

amendment would cause him an injury which could not be

compensated in costs. It is merely a particular case of this

general rule that where a plaintiff seeks to amend by setting

up a fresh claim in respect of a cause of action which since

the institution of the suit had become barred by limitation, the

amendment must be refused; to allow it would be to cause

the defendant an injury which could not be compensated in

costs by depriving him of a good defence to the claim. The

ultimate test therefore still remains the same: can the

1AIR 1957 SC 363

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amendment be allowed without injustice to the other side, or

can it not ?"

18.In the case of M/s. Ganesh Trading Co. V/s. Moji Ram

2

, the principles

were further enunciated, as under :

“4. It is clear from the foregoing summary of the main

rules of pleadings that provisions for the amendment of

pleadings, subject to such terms as to costs and giving of all

parties concerned necessary opportunities to meet exact

situations resulting from amendments, are intended for

promoting the ends of justice and not for defeating them. Even

if a party or its counsel is inefficient in setting out its case

initially the shortcoming can certainly be removed generally by

appropriate steps taken by a party which must no doubt pay

costs for the inconvenience or expense caused to the other

side from its omissions. The error is not incapable of being

rectified so long as remedial steps do not unjustifiably injure

rights accrued.” (emphasis supplied)

19.In the instant case, the thrust of the submission on behalf of the

Defendants, which found favour with the trial Court, was that the proposed

amendment would alter the nature and character of the suit inexorably and

would virtually amount to substitution of one cause of action for another and

conversion of the suit from that of declaration and injunction to that of specific

performance.

20.Undoubtedly, a party is not free to take mutually destructive pleas.

2AIR 1978 SC 484

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Though a party is entitled to take inconsistent pleas, yet, if it could be

demonstrated that the proposed amendment, in a sense, works out the

retribution of the pleadings in the original plaint, then the Court may be

justified in declining to grant such amendment. However, the mere

inconsistency in the averments in the unamended plaint and the averments

sought to be introduced by way of amendment, by itself, cannot be a

sustainable ground for rejection of the prayer for amendment in the plaint. It

is not an immutable rule of law that the Plaintiff cannot take inconsistent pleas

at all. The Plaintiff may claim alternative reliefs, provided the Plaintiff does not

profess to alter the character of the suit inexorably.

21.In the case of G. Nagamma and Anr. V/s. Siromanamma and Anr.

3

,

the Plaintiff had instituted a suit for specific performance of the agreement of

reconveyance. By way of proposed amendment, the Plaintiff sought to

redeem the mortgage asserting that the transaction of execution of the sale

deed and obtaining a document for reconveyance were single transactions

i.e. mortgage by conditional sale. Thus, the Plaintiff by way of amendment

sought a decree for redemption of mortgage in the alternative. The Trial

Court rejected the application. The High Court upheld the order opining that

the amendment would change the nature of the suit as well as the cause of

action.

3(1996) 2 SCC 25

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22.The Supreme Court allowed the application for amendment holding that

it is settled law that the Plaintiff is entitled to take, even inconsistent pleas.

The Plaintiff was seeking alternative reliefs. The application was for

amendment of the plaint whereby neither cause of action would change nor

the relief could be materially affected.

23.In the case of B.K.Narayana Pillai V/s. Parameswaran Pillai and

Anr.

4

, wherein the defendant intended to amend the written statement by

taking a plea that in case he is not held a lessee, he was entitled to the

benefit of Section 60(b) of the Indian Easements Act, 1882. The Supreme

Court permitted the amendment in the written statement observing that the

plea that was sought to be raised by way of amendment was neither

inconsistent nor repugnant to the pleas already raised in defence. It was

further enunciated that, there was no absolute bar against taking inconsistent

pleas. However, inconsistent and contradictory allegations in negation to the

admitted position of facts or mutually destructive allegations of facts should

not be avowed to be incorporated by means of amendment to the pleadings.

Proposed amendment should not cause such prejudice to the other side

which can not be compensated by costs. No amendment should be allowed

which amounts to or results in defeating the legal right accrued to the

opposite party on account of lapse of time.

4(2000) 1 SCC 712

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24.In the case of Praful Manohar Rele V/s. Krishnabai Narayan

Ghosalkar and Ors.

5

, the Supreme Court, after adverting to the

pronouncements in the case of G. Nagamma and Anr. (supra) and

B.K.Narayana Pillai (supra), permitted the Plaintiff to amend the plaint so as

to incorporate an alternative plea that, under the Rent Control Act, the

Defendants were liable to be evicted when the initial suit for recovery of

possession was filed on the basis of the claim that the Defendants were the

licencees and the licence stood terminated.

25.However, in cases where the relief proposed to be incorporated by way

of amendment would be barred by limitation, slightly different considerations

come into play. If it could be demonstrated that the relief proposed to be

claimed by way of amendment would be barred by limitation, the Court would

be justified in declining to permit the Plaintiff from amending the plaint.

26.In the case of L.J.Leach and Co. Ltd. V/s. Jardine Skinner and Co.

6

,

the Supreme Court enunciated that, it was no doubt true that courts would,

as a rule, decline to allow amendments, if a fresh suit on the amended claim

would be barred by limitation on the date of the application. But that is a factor

to be taken into account in exercise of the discretion as to whether

amendment should be ordered, and does not affect the power of the court to

order it, if that is required in the interests of justice.

5(2014) 11 SCC 316

6AIR 1957 SC 357

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27.In the case of Life Insurance Corporation of India V/s. Sanjeev

Builders Pvt. Ltd. And Anr.

7

, after an elaborate analysis and reference to the

previous precedents, the Supreme Court postulated that, one of the cardinal

principles of law in allowing or rejecting an application for amendment of the

pleading is that the courts generally, as a rule, decline to allow amendments, if

a fresh suit on the amended claim would be barred by limitation on the date of

filing of the application. But that as clarified in L.J.Leach and Co. Ltd.

(supra), would be a factor to be taken into account in the exercise of the

discretion.

28.The Supreme Court also referred to the judgment in the case of Ragu

Thilak D. John V/s. S. Rayappan

8

, wherein it was exposited that, where the

question whether amendment was barred by time or not appeared to be a

disputed question of fact, the issue of limitation could be made an issue in the

suit itself, then the amendment can be allowed by directing that the question

of limitation be framed and decided in the suit itself.

29.A profitable reference can also be made to the decision of the Supreme

Court in the case of Abdul Rehman and Anr. V/s. Mohd. Ruldu and Ors.

9

,

wherein the Supreme Court was confronted with the question as to whether

the proposed amendment would alter the claim / cause of action of the

Plaintiffs. In that case, the Plaintiffs had initially prayed for permanent

7(2022) 16 SCC 1

8(2001) 2 SCC 472

9(2012) 11 SCC 341

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prohibitory injunction restraining Defendant Nos.1 to 3 therein from forcibly

and illegally dispossessing the Appellants. By way of amendment, the

Appellants sought a declaration that the alleged sale deed in favour of

Defendant Nos.1 to 3 were liable to be set aside and that they would not

affect the rights of the Plaintiffs. In that context, the Supreme Court observed

as under :

“13.Next, we have to see whether the proposed

amendments would alter the claim/cause of action of the

plaintiffs. In view of the same, we verified the averments in the

unamended plaint. As rightly pointed out by Ms. Manmeet Arora,

learned counsel for the appellants that the entire factual matrix

for the relief sought for under the proposed amendment had

already been set out in the unamended plaint. We are satisfied

that the challenge to the voidness of those sale deeds was

implicit in the factual matrix set out in the unamended plaint and,

therefore, the relief of cancellation of sale deeds as sought by

amendment does not change the nature of the suit as alleged. It

is settled law that if necessary factual basis for amendment is

already contained in the plaint, the relief sought on the said basis

would not change the nature of the suit. In view of the same, the

contrary view expressed by the trial Court and High Court cannot

be sustained. It is not in dispute that the relief sought by way of

amendment by the appellants could also be claimed by them by

way of a separate suit on the date of filing of the application.

Considering the date of the sale deeds and the date on which the

application was filed for amendment of the plaint, we are satisfied

that the reliefs claimed are not barred in law and no prejudice

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should have been caused to respondent Nos. 1-3 (defendant

Nos. 1-3 therein) if the amendments were allowed and would in

fact avoid multiplicity of litigation.”

30.The legal position which, thus, emerges is that there is no absolute bar

against even the Plaintiff making inconsistent averments in the plaint. It is the

degree of inconsistency that assumes critical salience. If the inconsistency in

the pleadings is such that it completely destroys the case initially set up and

the original pleadings and the proposed amendment work out each other’s

retribution, then it would clearly be a case of setting up a new case.

31.In contrast, if the foundational facts remain the same and the proposed

amendment, even if inconsistent to some extent or by way of alternative relief,

is essentially in the nature of a different approach to the initial case, then it

cannot be said that the proposed amendment completely and inexorably

alters the character of the suit. However, where it could be demonstrated

that, by taking inconsistent pleas, the Plaintiff intends to deprive the adversary

of an advantage on account of the initial stand of the Plaintiff, or the relief

sought to be claimed by way of amendment would be barred by limitation,

then the said amendment cannot be allowed as it would fall foul of the

potentiality of prejudice principle.

32.On the aforesaid touchstone, reverting to the facts of the case, on the

first blush, resistance on the part of the Respondents – Defendants that the

proposed amendment completely alters the nature of the suit, in as much as,

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initially the prayers of declaration and injunction were sought and now by way

of proposed amendment, the specific performance of the purported

agreement between the Plaintiff and Defendant No.3 is sought, appears

alluring. Indeed, the Plaintiff is seeking to delete the prayer of declaration that

the building permission obtained by Defendant No.3 from Defendant Nos.1

and 2 allegedly on the basis of false and forged documents is illegal and void

and seeks to confine the declaration to non-observance of the Unified

Development Control and Promotion Regulations, 2020.

33.It is also true, the Plaintiff seeks to restrict the challenge to the MOU

dated 30 November 2021 in regard to the page Nos.3 and 4 of the said MOU

and not the instrument in its entirety, as being forged and fabricated and

seeks performance of the contract, which according to the Plaintiff, were the

true terms of the contract, as agreed by and between the Plaintiff and

Defendant No.3. Nonetheless, the pivotal question is, whether the aforesaid

proposed amendment materially and significantly alters the nature of the suit

or is based on a completely new cause of action.

34.To this end, it is imperative to revert to the case set up in the original

plaint. In para 6 of the plaint, the Plaintiff has categorically asserted that the

Defendant No.3 had agreed to provide a residential unit admeasuring 600

sq.ft. carpet, without any consideration in lieu of the demised premises.

Defendant No.3 had also agreed to pay transit rent @ Rs.10,000/- p.m. from

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the date of delivery of the possession of the demised premises till the

completion of the new building. In paras 7 and 8 of the plaint, the Plaintiff

asserts that Defendant No.3 made the Plaintiff to execute a MOU dated 30

November 2021, retained the same with it and did not provide a copy thereof,

and, eventually, Defendant No.3 allegedly forged the said MOU by replacing

page Nos.3 and 4 of the said MOU; the original pages of which did bear the

signature of the Plaintiff. The contents of the MOU were, thus, materially

altered to the prejudice of the Plaintiff fraudulently, is the fulcrum of the case

of the Plaintiff.

35.If the proposed amendment is appraised in the light of the averments in

the original unamended plaint, it becomes explicitly clear that, all the

foundational facts are clearly and specifically pleaded in the unamended

plaint. Declarations initially sought by the Plaintiff emanated from the

aforesaid averments in the unamended plaint. The case of the Plaintiff that

he is entitled to 600 sq.ft. Residential unit and transit rent @ Rs.10,000/- p.a.,

from the date of the surrender of the demised premises till the construction of

the new building, remain intact and unaltered. What the Plaintiff is seeking by

way of proposed amendment is the reliefs which are in tune with the

averments in the unamended plaint. The proposed amendment neither

introduces a new cause of action, nor materially alters the substratum of the

claim of the Plaintiff. Since the MOU was purportedly executed on 30

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November 2021, and in para 8 of the plaint, there are averments to the effect

that the Plaintiff came to know about the alleged forgery in the MOU after the

Plaintiff confronted the Defendant No.3 about the non-payment of the transit

rent and the application for amendment was filed on 13 January 2025, it

cannot be said that the relief sought by way of amendment would be ex-facie

barred by law of limitation. The question of limitation would, thus, be in the

arena of mixed question of facts and law. Therefore, if the proposed

amendment is permitted, no prejudice would be caused to the Defendants.

Nor the Defendants would be divested of any accrued right.

36.It is well neigh settled that, while considering the prayer for amendment

in the pleadings, the Court is not required to delve into the merits of the

amendment. The Plaintiff may or may not eventually succeed in getting the

relief sought by way of proposed amendment. However, that cannot be an

inhibiting factor while adjudicating the prayer for amendment. (Rakesh

Kumar Aggarwal and Ors. V/s. K.K.Modi and Ors.

10

)

37.The conspectus of aforesaid consideration is that the proposed

amendment is essential for the determination of the real question in

controversy between the parties, namely the nature and extent of the

entitlement of the Plaintiff upon redevelopment of the suit premises. That

being the crux of the dispute, the proposed amendment would obviate the

10(2006) 4 SCC 385

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multiplicity of the proceedings, as all the questions in controversy can be

determined once and for all.

38.For the foregoing reasons, I am inclined to allow the Petition.

39.Hence, the following order :

ORDER

(i)The Writ Petition stands allowed in terms of prayer clause (a).

(ii)Necessary amendment be carried out in the plaint and amended

copy of the plaint be served on the Defendants within a period of four weeks

from today.

(iii)The Defendants would be at liberty to file additional written

statement to the amended plaint within a period of 30 days from the date of

service of the copy of the amended plaint.

(iv)The question of limitation in regard to the reliefs sought by way of

proposed amendment shall remain open for adjudication at the trial.

(v)Rule made absolute to the aforesaid extent.

(vi)No costs.

( N.J.JAMADAR, J. )

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