SARASWATIBAI BISHAMBARLAL CHARITY TRUST AND ORSversusGOPAL TRADERS PRIVATE LIMITED

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                               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.
ARUN
RAMCHANDRA
SANKPAL               4. Sushil Jalan,
Digitally signed by   17/C, Woodlands, Peddar Road,
ARUN
RAMCHANDRA
SANKPAL
                      Mumbai 400 026.
Date: 2026.07.14
10:36:21 +0530

                      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



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Gopal Traders Private Limited                                …Respondent
(not known as Realcom Reality Private
Limited) Having its office address at 36,
Nepean Sea Road,
Mumbai 400 026.

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 3 rd 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
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at CTS No. 2/583, Jagmohandas Marg, Nepean Sea Road, Mumbai

(“the suit premises”). Under an Indenture of Sale dated 9 th 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 4 th 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


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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
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      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

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      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


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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.
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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.
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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.
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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.
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      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.
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(“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


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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.
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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.




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28.   Hence, the following order:

                                  :ORDER:

      (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.]




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