-WP-740-2026-J.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 740 OF 2026 1. Saraswatibai Bishwambarlal Charity Trust having its address at Maheshwari Mansion, L. Jagmohandas Marg, Mumbai 400 026 through Power of Attorney, Sampat Shankar Shilwant. 2. Sudarshan Malpani Aged about 55 years 802, Lodha Aria, Ram Tekdi Sewri, Mumbai 400 015. 3. Karan Maheshwari Maheshwari Mansion, L. Jagmohandas Marg, Mumbai 400 026. 4. Sushil Jalan, 17/C, Woodlands, Peddar Road, Mumbai 400 026. 5. Siddharth Mohan, 7, Joy Palasia, Indore, Madhya Pradesh 452 001. 6. Samvit Kanoria, Park Towers, 14, Bolly Gauge Park Road, Calcutta 700 019. 7. Siddhi Ghatallia, 803/D, Dr. Ambedkar Road, Dadar (East), Mumbai 400 014. ..Petitioners Versus ARS 1/15 ARUN RAMCHANDRA SANKPAL Digitally signed by ARUN RAMCHANDRA SANKPAL Date: 2026.07.14 10:36:21 +0530 -WP-740-2026-J.DOC Gopal Traders Private Limited (not known as Realcom Reality Private Limited) Having its office address at 36, Nepean Sea Road, Mumbai 400 026. …Respondent Dr. Abhinav Chandrachud, with Kaustubh Patil, Roshan Sawant and Dixit Parmar, for the Petitioners. Dr. Sanjay Jain, with Nakul Jain, Shubham Shah, i/b Tushar Goradia, for the Respondent. CORAM: N. J. JAMADAR, J. DATE : 7th JULY 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-Plaintiff takes exception to an order dated 3rd December 2025, passed by the learned Judge, City Civil Court, Greater Mumbai in Chamber Summons No. 1444 of 2025 in Suit No. 6570 of 2024, whereby the said Chamber Summons taken out by the Plaintiff to incorporate the amendments to the Plaint as specified in paragraphs P7, P8, P9 and P11 in the schedule of amendment, came to be rejected. 3. Shorn of superfluities, the background facts can be stated as under: 3.1 Petitioner No.1-Plaintiff No.1 is a registered Charitable Trust. Petitioner Nos. 2 to 7 claim to be the trustees of Plaintiff No.1-Trust. Plaintiff No.1 claims to be the owner of an immovable property situated ARS 2/15 -WP-740-2026-J.DOC at CTS No. 2/583, Jagmohandas Marg, Nepean Sea Road, Mumbai (“the suit premises”). Under an Indenture of Sale dated 9th January 1965, a limited right of way was granted to the holder of the adjoining property, through the suit premises. The Defendant is the current holder of the adjoining property. 3.2 The Plaintiffs alleged that, the Defendant demolished the wall separating the suit premises and the area over which limited right of way has been granted. The Defendant, according to the Plaintiffs, without obtaining the requisite permission from the Planning Authority has erected a concrete wall of eight feet inside the suit premises, committed encroachment over the suit premises and erected unauthorised structures. The Defendant professes to rely upon a purported Deed of Additional Right of Way dated 4th November 2020, under which an additional right of way having width of 3.74 meters has allegedly been granted. 3.3 The Plaintiffs have assailed the legality and validity of the purported Deed of Additional Right of Way on various counts. The Plaintiffs have thus instituted the Suit seeking a declaration that the purported Deed of Additional Right of Way is illegal, non-est, bad-in- law and not binding upon the Plaintiffs; to injunct the Defendant from using the purported Deed of Additional Right of Way for any purpose including for applying for any permission, sanction or approval from the ARS 3/15 -WP-740-2026-J.DOC Planning Authority, to restrain the Defendant from raising any construction over the suit premises and to direct the Defendant to remove the alleged illegal construction erected over the suit premises. 3.4 In the said suit, the Plaintiffs took out the Chamber Summons to amend the Plaint and bring on record the purported subsequent events in the nature of the action initiated by the Municipal Corporation for the removal of the unauthorised structures; the notice dated 21st March 2025 issued by the Municipal Corporation and the consequential actions by the parties to the Suit. 3.5 Prayers in the Chamber Summons were opposed by the Defendant primarily on the grounds that the proposed amendment was not necessary for the determination of the real question in controversy between the parties, and that the proposed amendment had the propensity to alter the nature of the Suit and unduly expand its scope. 3.6 By the impugned order, the learned Judge, City Civil Court was persuaded to partly allow the Chamber Summons and reject the prayer to incorporate paragraphs P7, P8, P9 and P11 in the Schedule of amendment, which read as under: “p-7: The Plaintiffs state that the Municipal Corporation of Greater Mumbai during the pendency of the present suit has issued Notice dated 21.03.2025 under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 to the Defendant for unauthorized encroachment (admn 3.54 x 34.8 ARS 4/15 -WP-740-2026-J.DOC m = 123.192 sq mtr) on the Trust Property by constructing compound wall adm. 34.8 (length) x 2.65 m (height) with RCC Foundation with Base Plate and Nut bolts, M.S. Box Section Column, pre-cast wall panels and construction of security cabin adm. 2.9 m x 3.8 x 2.1 (ht). The copy of the said Notice under Section 53(1) is hereto annexd and marked as EXHIBIT ‘J’. p-8: The Plaintiffs state that the aforesaid Notice shows that the encroachment made by the Defendant in the suit premises is illegal and without due permission. The Plaintiffs state that the Defendant has applied for regularization of the notice structure with the Municipal Corporation of Greater Mumbai by its application dated 30.04.2025. The copies of the said Application i.e. Form 4A, 4B and 4C alongwith Report is hereto annexd and marked as EXHIBIT ‘K’. The Plaintiffs state that the Plaintiff became aware of the said regularization application only in the first week of June 2025 when the Plaintiff’s representative enquired with the office of the MCGM as regards the demolition action of unauthorized construction. The Plaintiffs state that in the said Regularization Application, the Defendant has placed reliance upon the alleged Deed of Additional Right of Way dated 01.11.2020, the legality and validity of which is challenged before this Hon’ble Court in the present suit. p-9: The Plaintiffs state that on being aware of such regularization application, the Plaintiff has filed its objection dated 06th June 2025 with the MCGM, the copy of such objection is hereto annexed and marked as EXHIBIT ‘L’. The Plaintiffs state that the said application is now pending with the MCGM. p-11: The Plaintiff state that the Hon’ble Charity Commissioner has passed order dated 24.11.2021 thereby ARS 5/15 -WP-740-2026-J.DOC directing status quo in respect of the said property and no construction or encroachment is to be done thereon. The copy of the said order is hereto annexed and marked as EXHIBIT ‘M’. Thus, no regularization of any unauthorized structure can be permitted on the Trust property.” 3.7 The learned Judge, City Civil Court was of the view that the issue as regards the legality of the construction allegedly erected by the Defendant was under consideration before the Competent Authority, and if the Plaintiffs were permitted to bring those facts on record, they would enlarge the scope of the suit, and afore-extracted amendment was not necessary for the decision of the suit. 4. Being aggrieved, the Plaintiffs have preferred this Petition. 5. An Affidavit-in-Reply has been filed on behalf of the Respondent- Defendant controverting the contentions in the Petition. 6. I have heard Dr. Abhinav Chandrachud, the learned Counsel for the Petitioners, and Dr. Sanjay Jain, the learned Counsel for the Respondents, at some length. With the assistance of the learned Counsel for the parties, I have perused the original pleadings and the material on record. 7. Dr. Chandrachud, the learned Counsel for the Petitioners, submitted that the learned Judge committed manifest error in conflating the justifiability of the prayer for amendment with merits of the assertions sought to be brought on record by way of the proposed ARS 6/15 -WP-740-2026-J.DOC amendment. In the process, the learned Judge lost sight of the settled principle of law that, at the stage of the consideration of the Application for amendment, the Court need not delve into the merits of the case sought to be pleaded by way of such amendment. 8. Dr Chandrachud further submitted that the view of the learned Judge, that if the afore-extracted assertions were permitted to be incorporated by way of amendment, it would unduly expand the scope of the suit, is also plainly erroneous. Nor was the learned Judge justified in disallowing the amendment on the premise that the proposed amendment was not necessary for the adjudication of the suit. 9. Dr. Chandrachud made a strenuous effort to drive home the point that there is adequate foundation in the pleadings in regard to the alleged unauthorised construction erected by the Defendant, and that, by way of the proposed amendment, the Plaintiffs were simply bringing on record the subsequent developments which amplify the Plaintiffs case of unauthorised construction. 10. To lend support to the aforesaid submissions, Dr. Chandrachud placed reliance on the judgments of the Supreme Court in the cases of Punjab National Bank Vs Indian Bank And Anr,1 Rajesh Kumar Aggarwal 1 (2003) 6 SCC 79. ARS 7/15 -WP-740-2026-J.DOC And Ors Vs K. K. Modi and Ors2 and M. C. Agrawal HUF Vs Sahara India And Ors.3 11. Per contra, Dr. Sanjay Jain, the learned Counsel for the Respondent-Defendant, stoutly supported the impugned order. At the outset, Dr. Jain would urge, the learned Judge has passed a reasoned order within the bounds of the jurisdiction. The order can under no circumstances can be said to be perverse or unreasonable. In such circumstances, according to Dr. Jain, this Court would not be justified in interfering with the exercise of discretion by the City Civil Court, in the exercise of its limited supervisory jurisdiction under Article 227 of the Constitution of India. 12. Secondly, Dr. Jain would urge that, in the case at hand, the prime condition for the grant of an amendment, namely, the amendment being necessary for the determination of the real question in controversy between the parties, is not satisfied. Taking the Court through the averments in the Plaint, Dr Jain submitted that the principal challenge in the Plaint is to the Deed of Additional Right of Way on the ground that the Trustees who had executed the said Deed of Additional Right of Way, had no authority to do so. This being the substratum of the claim of the Plaintiffs, the determination of the aspect of the alleged unauthorised construction, purportedly erected by the Defendant, is not 2 (2006) 4 SCC 385. 3 (2008) 5 SCC 642. ARS 8/15 -WP-740-2026-J.DOC at all germane to the determination of the core issue that arises in the suit. 13. From this standpoint, Dr Jain would urge that, the learned Judge, City Civil Court was well within his rights in holding that if the amendment is allowed, the scope of suit would be unduly expanded. To lend support to this submission, Dr. Jain placed reliance on the judgment of the Supreme Court in the case of Life Insurance Corporation of India Vs Sanjeev Builders Private Limited.4 14. Lastly, Dr. Jain submitted that the matter proposed to be brought on record by way of the proposed amendment, was within the province of the Authority under the Mumbai Municipal Corporation Act, 1888 (“the MMC Act, 1888”). The legality and validity of those notices and the action of the Planning Authority was not to be decided in the instant suit. Dr. Jain would further urge, the Plaintiffs intended to bring the aforesaid material on record with an oblique motive to prejudice the Court against the Defendant. CONSIDERATION: 15. I have given careful consideration to the aforesaid submissions canvassed across the bar. 16. It is well recognized that all amendments which are necessary for the determination of the real question in controversy between the parties are required to be permitted. Two overarching principles govern 4 (2022) 16 SCC 1. ARS 9/15 -WP-740-2026-J.DOC the exercise of discretion to permit an amendment in the pleadings. One, whether the amendment is necessary for the determination of the real question in controversy. Two, whether the amendment has the potential to cause irretrievable prejudice to the opponent. The aspects as to whether the amendment would change the nature of the suit and whether the relief claimed thereby is otherwise barred by law of limitation, also deserve to be taken into account. However, it is trite at a pre-trial stage, where the interdict contained in the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (“the Code”), does not came into play, an application for amendment is required to be considered liberally. 17. In the case of Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon,5 the Supreme Court enunciated the principles which govern the exercise of jurisdiction to permit an amendment in the pleadings, as under:- 5] … …….. Rules of procedure are, intended to be a handmaid to the administration of justice. A party cannot be refused relief merely- because of same mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court -always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the -first omission and however late the 5 (1969) 1 SCC 869. ARS 10/15 -WP-740-2026-J.DOC proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. … ……” 18. In the case of Ganesh Trading Co Vs Moji Ram,6 the Supreme Court delineated the approach of the Court while determining an application for amendment in the pleadings, in the following words: “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.” 19. On the aforesaid touchstone reverting to the facts of the case, first and foremost, it is necessary to note that since the trial has not commenced, the interdict contained in the proviso to Order 6 Rule 17 of the Code was not attracted. Secondly, by way of the proposed amendment the Plaintiff sought to bring on record, the developments which occurred subsequently. Evidently, the Municipal Corporation has issued notice to the Defendant under Section 53 (1) read with Section 52(1)(b) of the Maharashtra Regional And Town Planning Act, 1966 6 (1978) 2 SCC 91. ARS 11/15 -WP-740-2026-J.DOC (“the MRTP Act”) on 21st March 2025, alleging unauthorised encroachment over the suit premises and erection of the structure in breach of the provisions of the MRTP Act, 1966. 20. It is well-recognized that a Court is required to take cautious cognizance of the subsequent events which bear upon the adjudication of the controversy in the suit. Ordinarily, the Court ought to allow a party to bring such subsequent events on record so that the Court is equipped to mould the reliefs at the stage of final adjudication. 21. Undoubtedly, the primary requirement is that the proposed amendment must be necessary for the determination of the real controversy between the parties. The learned Judge was of the view that the proposed amendment was not necessary for the adjudication of the suit. If the averments in the Plaint are read as a whole, especially in the context of the reliefs claimed in the Suit, this Court finds it rather difficult to subscribe to the aforesaid view of the learned Judge, City Civil Court. 22. As noted above, there are clear, explicit and categorical averments in the Plaint that on the basis of the purported Deed of Additional Right of Way (the legality and validity of which is assailed), the Defendant has encroached upon a portion of the suit premises and erected unauthorised structures sans necessary permission and approvals of the Planning Authority. The Plaintiffs have also sought the ARS 12/15 -WP-740-2026-J.DOC consequential reliefs of demolition of the alleged unauthorised developments and an injunction to restrain the Defendant from carrying out further developments and encroaching upon the suit premises, in addition to the relief of declaration. 23. The aforesaid being the comprehensive nature of the suit, the learned Judge, City Civil Court was not justified in observing that since the legality of the development carried out by the Defendant was a matter within the province of the Authorities under the MMC Act, 1888, the proposed amendment was not necessary. If properly construed, the proposed amendment, in a sense, fortifies the averments in the Plaint in regard to the alleged unauthorised construction. It is well-recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment can be allowed even after the expiry of the statutory period of limitation (A.K. Gupta and Sons Vs Damodar Valley Corporation)7 24. If viewed through the aforesaid prism, the proposed amendment appears to be necessary for the determination of the real question in controversy and, in no way, changes the character of the suit. The proposed amendment is essentially an attempt at amplification of the case of the Plaintiffs that the Defendant has carried out unauthorised development without the permission of the Planning Authority. To what 7 AIR 1967 SC 96. ARS 13/15 -WP-740-2026-J.DOC extent the proposed amendment would assist the Plaintiffs in substantiating its claim is a matter that touches upon the merits of the case. 25. Dr Chandrachud was justified in placing reliance on the decision of the Supreme Court in the case of Rajesh Kumar Aggarwal (Supra), wherein a caution against delving into the merits of the matter, sought to be introduced by way of amendment, was administered by the Supreme Court, in the following terms: “19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 26. As the learned Judge, City Civil Court has not exercised the jurisdiction in consonance with the settled principles of law in the manner of determining the prayer for amendment, this Court is enjoined to correct the mistake committed by the learned Judge, City Civil Court. Thus the submission of Dr. Jain that this is not a fit case for the exercise of supervisory jurisdiction does not merit acceptance. 27. For the forgoing reasons, the Petition deserves to be allowed. ARS 14/15 -WP-740-2026-J.DOC 28. Hence, the following order: : O R D E R : (i) Petition stands allowed. (ii) The impugned order to the extent the learned Judge, City Civil Court, has disallowed the amendment to incorporate p-7, p- 8, p-9 and p-11 (extracted above) stands quashed and set aside. (iii) The Chamber Summons stands allowed. (iv) The Petitioners-Plaintiffs are permitted to carry out the amendment in the Plaint so as to incorporate p-7, p-8, p-9 and p- 11 (extracted above), therein. (v) Necessary amendment be carried out and the amended copy of the Plaint be served on the Defendant, within a period of three weeks. (vi) The Defendant shall be at liberty to file an Additional Written Statement within a period of 30 days thereafter. Petition disposed. No costs. [N. J. JAMADAR, J.] ARS 15/15