1 wp1364.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 1364 of 2011 M/s. Hardik Land Development Corporation ... Petitioner v/s. Mercury Constructions Private Limited & ors. ... Respondents Mr. Gaurav Joshi a/w. Gaurav Parekar, Jayesh Mestry i/b RMG Law Associates for the petitioner. Mr. G.S.Godbole i/b. T.D. Deshmukh for respondents 1,5 and 6. Miss Aparna Gupta for respondent no. 4. CORAM:- B.R. GAVAI, J DATED :- APRIL 15, 2011. P.C. Rule. Rule, made returnable forthwith. 2. Heard. By consent taken up for final hearing. 3. By way of present petition, the petitioner challenges the order dated 18th December, 2010 vide which the application filed by the present 2 wp1364.11.sxw petitioner for amendment of plaint came to be rejected. 4. The petitioner has filed the suit for specific performance. During the pendency of the suit, an application came to be filed below exhibit 49 for amendment of the plaint, so as to incorporate the pleading that the suit property was conveyed by the original owner to the Directors of defendant no. 1 in their personal and individual capacity. The application was resisted by the defendants. The learned trial Court has rejected the application on the ground that since the issues are framed, it was not permissible for it to allow the application in view of amended provisions of Order 6 Rule 17 of the CPC. 5. Shri Gaurav Joshi, learned Counsel appearing on behalf of the petitioner submits that learned trial Court has grossly erred in rejecting the application. He submits that the evidence is yet to commence and as such the reasoning of the learned trial Court that the amendment was not permissible in view of amended provisions of Order 6 Rule 17 is without substance. 6. Shri Godbole, the learned Counsel appearing on behalf of respondent 3 wp1364.11.sxw nos. 1,5 and 6 vehemently opposes the petition. The learned Counsel submits that the petitioner-plaintiffs have not filed their affidavit in lieu of examination-in-chief though taking various adjournments and as such they are not entitled to take a ground that the evidence is yet to commence. The learned Counsel submits that the amendment which is sought to be incorporated, seeks to bring on record the relief which is barred by limitation. He further submits that the petitioners cannot take advantage of of their wrong. 7. By now it is a settled principal of law that the Courts are required to take a liberal view in the matter of amendment. The only rider in view of provisions of Order 6 Rule 17 of CPC which provides that the amendment should not be allowed, if a party could have brought the matter on record before the commencement of trial, if it had exercised due diligence. In the present case, admittedly the affidavit in lieu of examination-in-chief is yet to be filed. It appears that the learned trial Judge have only read the part of Judgment of Vidyabai & ors. v/s. Padmalatha & anr. reported in 2009 (4) Mh. L.J. In the said judgment itself the Apex Court has clarified that the term commencement of trial would mean filing of an affidavit in lieu of examination-in-chief. I, therefore, find that the learned trial Judge has 4 wp1364.11.sxw totally misapplied the judgment of the Apex Court in the case of Vidyabai. 8. Insofar as the grievance of the respondents regarding the amendment bringing a time barred claim on record is concerned, it will always be permissible for the defendants-respondents to raise a ground in the additional written-statement or by amending a written-statement that the relief claimed by way of amendment is beyond limitation. If such an issue is raised, the learned trial Court would be required to consider the same on the basis of evidence that would be led by the parties. The issue as to whether the amendment would relate back to the date of the suit or to the date on which an application was filed will also be an issue in the suit which will be decided by the learned trial Court on the basis of rival contentions at the stage of hearing of the suit. 9. Insofar as the prejudice that is caused to the respondents is concerned, it can very well be compensated by saddling cost. 10. In that view of the matter, rule is made absolute by quashing and setting aside the impugned order and by allowing the application below exhibit 49 filed by the present petitioner. However, this shall be subject to 5 wp1364.11.sxw cost which are quantified at Rs. 50,000/-. The cost be deposited in the trial Court within a period of four weeks from today. On deposit of the cost, the respondents 1,5 and 6 would be entitled to withdraw the same. 11. Taking into consideration that the dispute is petty old, hearing of the suit is expedited and the learned trial court is directed to dispose of the suit within a period of one year from today. (B.R. GAVAI, J)