1991 ALLMR ONLINE 355
BOMBAY HIGH COURT

M.M. QAZI, J.

Bombay Warehouse Corporation Vs. Devraj and another

S. C. Suit No. 1418 of 1975

29th April, 1991

Civil P.C. (1908),O. 6 R17

JUDGMENT

ORDER:-Plaintiff apply for amendment of the plaint by deleting the words "portion of " appearing in para 5 and prayel clause (a) of the plaint. It is their case that these words "portion of" have been inadvertently written and have remained through oversight.

2. The other side opposes. The contention of the other side is that by removing the words "portion of" the plaintiffs now want possession of additional premises and the relief, so far as these additional premises is concerned, is barred by time as the suit was filed in 1975 and the present amendment is sought in 1991.

3. The relief as per amendment will not be time barred if the amendment relates back to the date of filing of the suit otherwise it would be time barred. If the real dispute between the parties was in respect of possession of the entire premises and not merely portion thereof then the amendment, if allowed, would relate back to the date of filing of the suit.

4. Now, in the first place the Court fees are paid as if possession of the entire premises is sought. Secondly in para 4 of the plaint the plaintiff have made it clear that they have been deprived of the entire premises by stating that the defendants have put their own lock thereon. Thirdly if we see prayer Cls. (c) and (d) of the plaint, though they are only for interim reliefs, they make it clear that the plaintiffs' suit relates to the entire godown premises and not the portion thereof.

5. Miss Nichani, the learned counsel on behalf of the defendants, draws my attention to plaint paragraph 2, plaint paragraph 5 and the written statement. What is stated in plaint paragraph 5 is "portion of" which is sought to be amended by the plaintiffs. Plaint paragraph 2 states as to what was agreed by the defendants and not what is sought by the plaintiffs to recover from the defendants. As regards the written statement that contention, in fact, reveals what is the real dispute between the parties.

6. Hence, the application by way of affidavit for amendment of the plaint, as stated above, is granted and it will relate back to the date of filing of the suit. The plaintiffs to carry out the amendment by tomorrow.

Order Accordingly