1 WP 314/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 314 OF 2011 M/s Kachardas Dayaram Bhatewara .. Petitioner V/s M/s Baheti Brothers & Anr. .. Respondents Mr. S.S. Kulkarni for the petitioner. Mr. M.S. Karnik for the respondents. CORAM : D.G. KARNIK, J. DATE : 1ST AUGUST 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Karnik waives service for the respondents. 3. By consent, heard forthwith. 4. The petitioner’s application for amendment of the plaint was rejected on the ground that the application was barred in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short “the Code”). The trial Court held that since the the trial had commenced, the application could not be entertained. 5. Counsel for the petitioner submitted that the suit was filed on 3rd April 2002, i.e. prior to the commencement of the Code of Civil Procedure (Amendment) Act, 2002 (for short “the 2 WP 314/2011 Amending Act of 2002”) which came into effect on 1st July 2002. Section 16(2) of the Amending Act of 2002 states that the provisions of Rules 5, 15, 17 and 18 of Order 6 Rule 17 of the Code, as inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (for short “the Amending Act of 1999”), shall not apply to in respect of any pleading filed before the commencement of section 16 of the Amending Act of 1999. 6. In State Bank of Hyderabad v. Town Municipal Council, (2007) 1 SCC 765 , the Supreme Court has held that the proviso to Order 6 Rule 17 of the Code would not apply to a pleading which has been filed before 1st July 2002, i.e. the date on which the Amending Act of 2002 came into force. Consequently, the trial Court ought not to have rejected the application for amendment on the ground that the amendment was barred by proviso to Order 6 Rule 17 of the Code. 7. Mr. Karnik for the respondents, however, submitted that the respondents were opposing the application for amendment even on other grounds and the other grounds have not been considered by the Court and therefore the matter may be remanded back to the Court for considering whether the 3 WP 314/2011 amendment could be allowed de hors the proviso to Order 6 Rule 17 of the Code. The submission has merit and requires to be accepted. Hence, I pass the following order. 8. The impugned order is set aside and the matter is remanded back to the trial Court for considering it afresh on merits in the light of the decisions of the Supreme Court in State Bank of Hyderabad v. Town Municipal Council (supra) and Sumesh Singh v. Phoolan Devi, (2009) 12 SCC 689. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)