JUDGMENT : Sunil P. Deshmukh, J. Present Letters Patent Appeal takes exception to the order passed by Hon'ble learned Single Judge on 15-10-2012 in Writ Petition No. 2290 of 2012, whereunder the appellants-plaintiffs' challenge to the rejection, of their application (Exh. 29) for amendment in Regular Civil Suit No. 916 of 2008, vide order dated 2-2-2012 on the file of the 17th Joint Civil Judge, Junior Division, Aurangabad, has failed. 2. Facts canvassed leading to the Letters Patent Appeal are worthwhile to be briefly referred to as, The appellants who are plaintiffs in said R.C.S. No. 916 of 2008, had entered into an agreement of purchase, with the respondent-original defendant in respect of plot of land bearing No. 83, CTS No. 12369, admeasuring 285 square meter, situated at Bassaye Nagar, Aurangabad for a total consideration of Rs. 30,00,000/-, on 4-7-2008 under a notarized document. 3. The plaintiffs had paid to the respondent, Rs. 1,00,000/- in cash and another lakh by drawing a cheque bearing No. 626688 on Vijaya Bank. Out of the total consideration of Rs. 30,00,000/-, balance amount of Rs. 28,00,000/- was agreed to be paid on or before 3-11-2008 by which date registration of the sale deed was to take place. Expenses over taxes and registration upto execution of sale deed, were to be borne by the defendant. 4. Thereafter, on 13-8-2008, plaintiffs gave a proclamation in Marathi daily "Sakal", disclosing their intention to purchase said land plot and inviting objections to the same, if any. 5. Unexpectedly for the plaintiffs, the owner-defendant himself raised objection and purported to deny the transaction. He further purported to deny the receipt of amount by cash as well as under the cheque. 6. Thereupon, the plaintiffs had given a notice to the owner-defendant through Advocate on 28-8-2008, calling upon him to execute the sale deed and communicating their willingness to complete the transaction. 7. Sometime later, it was learnt by the appellants-plaintiffs that the respondent is in the process of entering into development agreement with a developer/contractor. Looking at that the defendant is trying to deal with the property under the transaction between the plaintiffs and the defendant, the plaintiffs instituted a suit (RCS No. 916/2008) to prohibit the defendant from entering into transaction or dealing with the property and also sought temporary injunction with a prospect to secure it. 8. The suit came to be resisted by the defendant. 8. The suit came to be resisted by the defendant. The defendants in their written statement had objected to not availing proper remedy. 9. The plaintiffs realized that relief in the form in which it had been sought in the suit, is not going to serve their purpose and as such, applied to the Court vide Exhibit 27, seeking leave to withdraw the suit with permission to institute a proper suit before the Court of Civil Judge, Senior Division. 10. Said application was resisted by the defendant, contending that the application is untenable since being affected by Order II, Rule 2 and Order XXIII, Rules 3 and 4 of the Code of Civil Procedure. The application being an afterthought does not deserve to be entertained. 11. Learned Trial Judge has observed that in the plaint itself, the plaintiffs have referred to that they are confused/jumbled as to what remedy should be adopted and had filed the instant suit. The learned Judge further considered that the plaintiffs had been represented by a Counsel and as such, should be deemed to be aware as to reliefs which ought to be sought. The learned Judge considered that the plaint paragraph 3 is an indication of intention of the plaintiffs to relinquish other reliefs and moreover, since no leave had been obtained for keeping back relief of specific performance, it weakens the strength of the application. 12. The learned Judge was not satisfied about there being any formal defect in the suit, or about sufficiency of grounds to allow the application. The omission to claim relief without leave of the Court was considered not to be a sufficient ground for granting application and as such, application (Exh. 27) for leave to withdraw the suit with permission to institute fresh suit had been rejected under order dated 4-3-2011. 13. Thereafter, the plaintiffs filed application (Exh.29), seeking leave to amend the plaint, on 25-4-2011. 14. After referring to the aforesaid facts, the learned Judge has referred to that the only contention of the plaintiffs is that they were confused and had no knowledge about availability of specific remedy and therefore filed a suit for injunction and cases relied on viz. Heavy Light Industrial Corpn. vs. State of Maharashtra, 2001 (1) BCJ 36 and Sajan J. Nakase vs. Sandhya S. Nakase, 2006 (3) BCJ 177 were considered to be on different set of facts. 15. Heavy Light Industrial Corpn. vs. State of Maharashtra, 2001 (1) BCJ 36 and Sajan J. Nakase vs. Sandhya S. Nakase, 2006 (3) BCJ 177 were considered to be on different set of facts. 15. The learned Judge considered that the application (Exh.27) was for the same reasons as contained in the application seeking amendment. The representation by a lawyer had weighed with the trial Court and it was considered that the plaintiffs had willingly chosen the relief of perpetual injunction and present amendment sought would totally change the nature of the suit. The Court further considered that the plea by way of amendment is inconsistent with the original plea and as such, cannot be allowed. The plaintiff cannot avail another relief after choosing one of them, then claiming the same relief by way of amendment, cannot be permitted and as such, application (Exh.29) was rejected by order dated 2-2-2012. 16. The order on Exhibit 29 was the subject-matter of challenge in Writ Petition No. 2290 of 2012. The Hon'ble learned Single Judge considered that the plaintiffs having made choice to file suit for simpliciter injunction, omitting the relief in respect of specific performance without leave of the Court, the same would bind the plaintiffs. 17. We have perused the plaint and the application for amendment. For ready reference, it would be worthwhile to reproduce the relevant extract of the pleadings in the plaint. "The plaintiffs also interested to purchase the said property and respondent also sale out said property. Hence, both persons came at one platform and they made the transaction about the said property. The defendant has constructed 300 sq. ft. raw construction in bricks and mud and he also constructed 600 sq. mtrs. in R.C.C. The respondent also taken light facility along with meter, water tank in the said property. The plaintiffs also purchased the said house belong to respondent. He is also ready to sale it. So, the respondent and plaintiffs have executed 'Isar Pawati' of said house. The Issar Pawati was executed on dated 24-7-2007, before the Notary and in presence of three witnesses. The said Issar Pawati was executed before Notary. The plaintiffs and respondents came to one platform and decided following terms and conditions. (a) They have decided the price of property as Rs. 30 Lakhs. (b) They have decided that on dt. 4-7-2008, the plaintiffs has paid Rs. The said Issar Pawati was executed before Notary. The plaintiffs and respondents came to one platform and decided following terms and conditions. (a) They have decided the price of property as Rs. 30 Lakhs. (b) They have decided that on dt. 4-7-2008, the plaintiffs has paid Rs. 1 lakh cash as well as they have also given one cheque of Rs. 1 lakh bearing No. 626668. The said cheque is post dated one and it will be encashed on 10-8-2008 at Vijaya Bank, Adalat Road, Aurangabad. (c) The remaining amount of Rs. 28 lakhs will be paid on or before 3-11-2008 at the time of registry. 5. That, the taxes of the property as well as electric meter charges will be paid by the respondent and the expenditure of registry will be bared by plaintiffs. The possession of the property will be handed over to plaintiffs at the time of registry. 6. That, the said agreement have been executed between plaintiffs and respondent on dt. 24-7-2008. The said agreement have executed between them and prior that, the respondent has handed over the copies of said property. Later on they have executed the said disputed 'Isar Pawati'. The copies of Issar Pawati are annexed herewith. 7. That, the plaintiff has given proclamation in daily news paper 'Sakal' on dated 13-8-2008. The plaintiffs has published, the proclamation and disclosed the contents of transaction and also invited the objection from public. The plaintiffs expected, the writ objection from the third person, but unfortunately, the respondent has raised the objection and the respondent, has denied the all transactions which he has executed, the Issar Pawati. 8. That, the defendant also decided to accept the cheque nor he accepted the cash received, from plaintiffs. The respondent has given also proclamation in daily Sakal news paper, and he has published the answer of the proclamation. The said answer is false and bogus. The respondent has published that he has given the reply of the plaintiffs' proclamation which was published on 13-8-2008, at daily Sakal news paper, he also contended that, the owner of plot No. 83, CTS No. 1239/327 as well as the property in the sheet 391 and 320, and such property is adm. 285 sq. The respondent has published that he has given the reply of the plaintiffs' proclamation which was published on 13-8-2008, at daily Sakal news paper, he also contended that, the owner of plot No. 83, CTS No. 1239/327 as well as the property in the sheet 391 and 320, and such property is adm. 285 sq. meters and its situated at Bassiyanagar, A'bad He also contended that, he has never made any transaction with the plaintiffs as well as the said proclamation is notty one therefore, nobody will take the trust on the said proclamation. The respondent also contended that, he will take the legal action against the plaintiffs. The said proclamation has been published through Rajesh Salar Advocate. The plaintiffs has been published his publication on dated 13-8-2008, as well as the respondent has published reply of proclamation on dtd. 17-8-2008, the both proclamations copy are annexed herewith for the kind perusal of this Hon'ble Court. 9. That the plaintiff has given the legal notice to the respondent on dt. 28-8-2008, and the said notice posted on 29-8-2008 to the defendant. The said notice has been received by the respondent and acknowledgment receipt has been received by plaintiffs from postal department. The respondent does not given any reply of the said legal notice up-till-now. The copy of the legal notice and acknowledgment is annexed herewith for the kind perusal of this Hon'ble Court. The plaintiffs also given the notice through U.P.C. The said notice also received by respondent but, he has not given any reply. The copy of the U.P.C. Receipt is annexed herewith for the kind perusal of this Court. 10. That, the plaintiff has given several messages to the respondent to execute the Registry as well as the amount is lying on the A/c of plaintiffs so that amount will be withdrawn but the respondent does not withdraw the amount and he also not used the cheque bearing No. 626668 which is of Vijay Bank, Adalat Road, Aurangabad. The plaintiffs tried to met the respondent personally but he avoided to visit of plaintiffs therefore the plaintiffs are in jumbling what remedy will be adopted so he filed this suit. 11. That, the plaintiffs has got the knowledge from his friends as well as his agents that, the respondent handed over the said property for development to the Developers/contractor for developing the said property with the 60/40 ratio. 11. That, the plaintiffs has got the knowledge from his friends as well as his agents that, the respondent handed over the said property for development to the Developers/contractor for developing the said property with the 60/40 ratio. The respondent will have to get 40% construction or F.S.I. from the developers and 60% F.S.I. will be taken by the developers therefore, the said transaction has been done so, the said transaction will be completed so the plaintiffs will be suffered irreparable financial loss. The plaintiffs having status in market, if such transaction does not completed so his image and status will be spoiled in the society. So in the interest of justice the respondent may kindly be restrained to sell, alienate or handed over for development purpose of the abovesaid property's transaction had been carried out by the plaintiffs and respondent. The Temporary Injunction is necessary for plaintiffs to restrain the respondent, so the plaintiffs has filed this T.I. and he ought to get the relief from this Hon'ble Court." 18. The relief claimed in the suit is quoted below. "The defendant may kindly be not to sell, alienate, or to give the said property to any Developer/contractor for Development of the said property i.e. plot No. 83 which is situated at Bassayye Nagar, and it comes on the Sheet No. 319, 320 CTS No. 12369/327, Plot No. 83, adm. 19 meters x 15 metrs. i.e. 285 sq. mtrs. which is in the name of defendant." 19. The plaintiffs had claimed the cause of action to have accrued in October, 2008. 20. Subsequently, with a view to institute a suit for specific performance, leave had been sought to withdraw the suit with permission to file a suit for specific performance. Such leave, as referred to in foregoing paragraphs, had been declined and, therefore, immediately, an application for amendment had been filed making certain pleadings little more elaborate and claiming specific performance, which is rejected. 21. The facts underlying the observations of the Supreme Court in Van Vibhag Karamchari Griha Nirman Sakahari Sanstha vs. Ramesh Chander, AIR 2011 SC 41 , sought to be relied on by defendant's counsel in the present matter, widely differ from the present set of circumstances. 21. The facts underlying the observations of the Supreme Court in Van Vibhag Karamchari Griha Nirman Sakahari Sanstha vs. Ramesh Chander, AIR 2011 SC 41 , sought to be relied on by defendant's counsel in the present matter, widely differ from the present set of circumstances. In the case before the Supreme Court, three farmers had jointly entered into an oral agreement to sell with aforesaid co-operative housing society and had delivered the possession of land under the agreement to the society. Subsequently, the land came to be covered under land acquisition proceedings. On publication of section 4 notification under the Land Acquisition Act, 1894, the co-operative housing society went in writ petition before the High Court, challenging the land acquisition proceedings in respect of the land and an injunction against acquisition had been clamped. Thereafter in 1991, one of the original owners issued a public notice claiming ownership and possession, contending that any action by co-operative society would not affect his rights. He also stated that the agreement to sell and power of attorney in favour of the appellant-co-operative society stood cancelled. It was thereupon, the appellant co-operative society instituted a suit for declaration of ownership and permanent injunction. The plaintiffs' prayer for temporary injunction was rejected by trial Court by a reasoned order in 1994, pointing out that the suit had not been filed for specific performance. During pendency of the suit, land acquisition proceedings were quashed by the High Court. It was directed that the land be reverted to the original owner as the notification under challenge was quashed. Thereafter, the co-operative society issued legal notice on 4-6-2000, calling upon the concerned owner to execute a registered sale deed of the land failing which, were warned of institution of a suit for specific performance. Said claims under the notice were refused by reply. In the meanwhile, appeal against rejection of injunction application by the society was dismissed on 15-5-2002 by the Appellate Court and said order was not carried further in appeal/revision/writ by the co-operative housing society. Thereafter, the society moved an application for amendment in the pending suit, claiming relief of specific performance. The amendments were allowed and were incorporated in the pleadings in 2003. A review of said order was sought by the original owner which was dismissed by the Court. Thereafter, the society moved an application for amendment in the pending suit, claiming relief of specific performance. The amendments were allowed and were incorporated in the pleadings in 2003. A review of said order was sought by the original owner which was dismissed by the Court. The plaint was returned by the Court to the appellant for filing the same in the competent Court having jurisdiction. The suit was dismissed on merits by the trial Court in 2004. The trial Court had also dismissed the application filed by the plaintiff under section 14 of the Limitation Act for exclusion of time from 1991 to 2002. Aggrieved by said order, the co-operative housing society had filed writ petition before the High Court. It was treated as appeal. Subsequently, in 2007, the appeal came to be dismissed by the High Court and said order was challenged before the Supreme Court. It appears that the Supreme Court has considered that the cause of action to file the suit for specific performance had arisen in 1991 and that such a suit (for specific performance) was not filed within the period of limitation. The Supreme Court had then discussed the relevant Article of Limitation Act for institution of suit for specific performance. The reason given for exclusion of such claim in the suit originally filed by the society did not weigh with the Supreme Court. In the facts of that case, the Supreme Court considered that such omission may amount to relinquishment of the claim for specific performance and it is in the context of that suit, the Supreme Court had observed that broad principles of Order II, Rule 2 of Civil Procedure Code are attracted. The Supreme Court, in the facts of that suit, had observed that the character of the suit was virtually altered as the pecuniary jurisdiction of the suit had gone up, by claiming specific performance. 22. Thus, it emerges that the Supreme Court did not intend to lay down any principle, based on the observations made in aforesaid judgment. The Supreme Court's observations were in the context of the facts involved in the case before it. As such, reliance by defendant on the same would not be of any assistance to him in the present matter. 23. The Supreme Court's observations were in the context of the facts involved in the case before it. As such, reliance by defendant on the same would not be of any assistance to him in the present matter. 23. One would have to appreciate that as far as procedural aspects are concerned, knowledge of the same may not really be concerning a litigant and in the present case, the form in which relief had been claimed, may not be directly within the control of the plaintiffs with knowledge of its implications. The pleadings do exemplify that the plaintiffs had been confounded and were not sure about the remedy to be adopted, and landed up in institution of suit praying for injunction. Looking at the basic intention underlying pleadings, it cannot be said that the plaintiffs had an intention to relinquish relief of specific performance. On realization of the error creeping in, in not formulating reliefs properly, the plaintiffs appeared to have adopted remedial recourse by which deficiency appearing in the reliefs claimed were sought to be removed. It has to be appreciated that when the plaintiffs were confused as to which remedy should they adopt, it would mean in the facts of present case, that they were not intending to omit or relinquish the relief of specific performance. 24. It has to be appreciated that Order II, Rule 2 of Civil Procedure Code is a procedural rule. It is also qualified by the word "intentionally". Thus, if a litigant intentionally relinquishes a particular relief, the question of barrier to claim the same would arise. 25. In the present case, the plaintiffs were not going to gain anything by omitting or relinquishing the claim of specific performance. The relief as originally claimed, is purposeless without there being any specific performance of the claimed transaction. Sequence and occurrence of events in the present matter depict the object underlying is the specific performance of the claimed transaction and is implicit in the same. Thus, the case of the plaintiffs may not be affected by the procedural aspects and would be outside the scope of Order II, Rule 2 of Civil Procedure Code. 26. In the present case, on realization that the relief is to be explicitly claimed, there has been an immediate action on the part of the plaintiffs, by adopting remedial measures of making applications for redressal of wrongs against them. 27. 26. In the present case, on realization that the relief is to be explicitly claimed, there has been an immediate action on the part of the plaintiffs, by adopting remedial measures of making applications for redressal of wrongs against them. 27. Another aspect that needs attention is, as to what should be the approach to an amendment application. The authoritative pronouncements by, the Supreme Court constituting binding precedents and other High Courts, provide guidance in the matter of amendments and are pointer to that an application for amendment would not be baulked by procedural requirements. It is not a case that even the provisions in Code of Civil Procedure relating to amendments hinder presentation of application for amendment. It would not be proper to say that in present case, the relief which hitherto had been implicit in the pleadings is sought to be made explicit by way of amendment, would by itself be against the nature of the suit as had been originally presented. As a matter of fact, it appears to be a case otherwise. It carries forward intention underlying the suit. It cannot be said that the relief of injunction and specific performance would not go hand in hand and they shall be deemed to be on cross roads in the present case. We are constrained to say that the rejection of amendment application considering the same to be altering or changing nature of the suit does not appear to have sound factual and legal basis. Even otherwise, it has to be appreciated that by amending the plaint, the defendants would not be prejudiced, for they would have all the opportunity to resist the amended pleadings in the plaint and have their own pleadings in defence on the same. The amendment would not deprive the defendants of resisting the claims under the amendment of the plaint. Thus, cursory consideration would amount to cutting off remedial channel for establishment of specific rights. The contest on merits is a hallmark of judicial system. Whether the plaintiffs establish their claim under amendment or not is one thing and closing doors by blocking them by procedure rule, is quite another. 28. Having regard to this position, the reliance placed by the defendant on the decision of the Apex Court in the case of Van Vibhag Karmachari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander and ors. 28. Having regard to this position, the reliance placed by the defendant on the decision of the Apex Court in the case of Van Vibhag Karmachari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander and ors. is of no assistance as the Supreme Court in the facts of that case had considered that the suit had not been filed within the period of limitation prescribed under section 54 of the Limitation Act. However, it has to be noted that in that case also amendment to the plaint had been allowed by the Court and the Supreme Court had considered that the amendment does not relate back to the original date of filing of the plaint. 29. Looking at the date of cause of action claimed by the plaintiffs in the suit and the date of making application for amendment, reliance placed by the defendant on the decision in Tarlok Singh vs. Vijay Kumar Sabharwal, 1996 DGLS (soft.) 649, would be a misplaced one. So is the case in respect of the decision in MV.x.press Annapurana vs. Gitanjali Woolens Pvt. Ltd., 2011 (6) Bom.C.R. 356. This decision is of no aid to the defendant, as the same is based on completely different set of facts and law. 30. Having regard to the aforesaid, we consider that the amendment application deserves a liberal approach. The veracity of claims under amendment is a matter to be decided on merits and evidence and, therefore, we deem it appropriate that application (Exh. 29) deserves to be allowed. 31. The other leg on which claims under the Letters Patent Appeal is opposed, is about maintainability of the Letters Patent Appeal. Resistance by the defendant to maintain the present L.P.A., is on the ground that the jurisdiction invoked by the learned Single Judge was under Article 227 of the Constitution of India. Support to said proposition, is sought to be had from answer to the questions captioned "Reference 9" in the judgment of Full Bench of this Court in Advani Oerlikon Ltd. vs. Machindra Govind Makasare, 2011 (2) Mh.L.J. (F.B.) 916, 2011 (3) Bom. C.R. 12. The Full Bench has propounded availability of Letters Patent Appeal at the instance of respondents in the writ petition under Article 227, if the decision rendered in the same is against the respondent, to canvass that L.P.A. would not be maintainable in reverse case, such as, present one. C.R. 12. The Full Bench has propounded availability of Letters Patent Appeal at the instance of respondents in the writ petition under Article 227, if the decision rendered in the same is against the respondent, to canvass that L.P.A. would not be maintainable in reverse case, such as, present one. However, answers to References No. 1, 2, 3, 4 and 6 clearly make L.P.A. available, if subordinate Court or tribunal commits an error, or acts in excess of jurisdiction, or fails to exercise the same, the errors can be corrected in L.P.A. The purport underlying the answers based on the observations of the Supreme Court, indicates that the authority or the body of persons constituted by law to adjudicate upon the questions affecting a right of a subject and enjoined with a duty to act judicially or quasi judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of Courts subordinate to the High Court can, it has been held, be subjected to certiorari, observing that the decision of the Division Bench in National Textile Corporation does not represent the correct position of law. 32. Having regard to said decision of the Full Bench which has been cited by the defendant-respondent, we do not see any substance in the resistance to maintainability of the present Letters Patent Appeal. 33. There does not appear to be any prohibition to ask for leave under Order II, Rule 2 of the Code of Civil Procedure and can be sought at any stage of the suit. The matter also deserves to be considered, accordingly. 34. We, prima facie, find that the pleadings in the suit, in substance, are aimed at seeking and securing specific performance of transaction claimed to have been entered into between the parties, by preventing creation of any third party interest over the same. The plaintiffs, who are laymen as far as the procedural legal aspects are concerned, the form in which the reliefs need to be claimed, may not be liable to be blamed. The averments in the plaint are pointer to that the plaintiffs, in fact, intended to claim specific performance, however, did not make the same explicit, by claiming the relief of specific performance. 35. It also needs to be considered, by instituting a suit simpliciter for injunction, plaintiffs were not going to be benefited in the ultimate object of acquiring suit property. 35. It also needs to be considered, by instituting a suit simpliciter for injunction, plaintiffs were not going to be benefited in the ultimate object of acquiring suit property. The purpose underlying the suit intrinsically appears to reflect intention to have specific performance. 36. We, therefore, allow the Letters Patent Appeal, set aside the order passed on 2-2-2012 by the learned Trial Judge on Application (Exh. 29) in R.C.S. No. 916 of 2008, and the order of the Hon'ble learned Single Judge of this Court in Writ Petition No. 2290 of 2012 passed on 15-10-2012. We allow said application Exhibit 29 in R.C.S. No. 916 of 2008. 37. We would like to make it clear that we have not observed anything on merits of the suit, nor do our observations would, take away right of the defendant to defend the suit on the pleas he would like to take in defence. 38. However, having regard to the facts and circumstances of the case, we deem it appropriate to impose costs of Rs. 10,000/- which the plaintiffs shall deposit in the trial Court to be paid to the defendant within a period of eight weeks from today which shall be the condition precedent for putting order in the Letters Patent Appeal in operation, lest the order in Letters Patent Appeal shall be deemed to have been recalled and the Letters Patent Appeal would be treated as dismissed without further reference to the Court. 39. Civil Application for stay stands disposed of, accordingly.