1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3921 OF 2009 Rampratap Singh Rajedeo Singh Harban Singh ........ Petitioner versus Sunil Ramji Singh and ors ........Respondent. Mrs. V.V. Thorat i/b. R.A. Thorat adv. for the Petitioner Mr. Parikh a/w Rizvi Nasir i/b. Thakore Jareiwala Adv. for the Respondent no.5. Mr. A.I. Patel AGP for respondent no.2. CORAM: A. P DESHPANDE, J. DATED : 13th November, 2009. P. C.: 1. Consequent upon passing of the order dated 9-11-2009 the Registry has endorsed its report in regard to service of notice to the respondent. All the respondents are served. However the respondent no.5 who is a contesting defendant and the learned AGP had appeared in the matter. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. The present petitioner is the original plaintiff who instituted a suit for perpetual injunction against the defendants. During the pendency of suit, some of the defendants have been added. The 2 petitioner/plaintiff moved an application seeking amendment of Plaint under Order 6 Rule 17 of CPC by contending that though at the time of filing of the suit the petitioner was in possession of the suit property, however, during the pendency of the suit sometime in the year 2005 the petitioner has been dispossessed. With a view to bring on record the fact of dispossession and for making a prayer for possession of the suit property, the petitioner/plaintiff moved the amendment application. The amendment application has been rejected mainly by placing reliance on the provisions of proviso to Order 6 Rule 17 of CPC. The present suit is of the year 1994 and thus, it is an admitted position that the proviso to Order 6 Rule 17 of CPC has no application. The proviso restricts the power of courts to permit amendment after the trial of the suit commences. As the amendment application is decided at the touch stone of the proviso to Order 6 Rule 17 the application came to be rejected. 4. In the submission of the learned counsel for the petitioner the trial court has failed to exercise the jurisdiction vested in it by law by placing reliance on the proviso to Order 6 Rule 17. It is hence submitted that the impugned order deserves to be quashed and set aside and the matter be remitted back to the trial court for decision of the application in accordance with law which prevailed prior to insertion of the proviso. The learned counsel for the defendant no.5 has no objection for this course being followed. 3 5. In the result, the petition deserves to be allowed. I am also of the view that by incorrect application of proviso the application has not been considered in its proper perspective and hence the remand of the matter for re-adjudication of the application for amendment would sub serve the ends of justice. Hence the petition is allowed. The impugned order is quashed and set aside, and the matter is remitted back to the trial court for decision of the application in accordance with the law. The amendment application moved by the petitioner/plaintiff stands restored to file. The trial court is directed to decide the said application after affording an opportunity of hearing to the parties in the light of the observations made in this order. Having regard to the facts of the present matter, I hope and trust that the trial court will make an endeavor to decide the suit as expeditiously as possible. Rule made absolute in the above terms. (A. P. Deshpande, J.)