1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 450 OF 2010 Hemchandra Ganpat Desai & Ors. .. Petitioners V/s Dinesh Tulsidas Sheth & Ors. .. Respondents Mr. G.V. Limaye for the petitioners. Mr. P.S. Dani for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 14TH JUNE 2010 P.C. : 1. Rule. By consent, Rule is made returnable forthwith. Mr. Dani waives service for the respondents and undertakes to file vakalatnama on behalf of the respondent no.2 within a week. Undertaking is accepted. 2. Heard learned counsel for the parties. 3. By this petition, the petitioners challenge the order dated 9th December 2009 passed by the learned Civil Judge, Senior Division, Alibag rejecting their application for amendment. 2 4. The respondents had earlier filed a suit being Regular Civil Suit No.49 of 1977 against the petitioners for possession on the ground that they were trespassers as their licence was terminated. In that suit, the appellate court held that the petitioners were the protected licensees. During the pendency of the previous suit, the respondents filed the present suit being Regular Civil Suit No.53 of 1979 claiming damages for wrongful occupation of the suit premises. The petitioners filed their written statement contested the suit. After the decision of the previous suit and appeal therefrom, they filed an application for amendment contending that they were the protected licensees and they have been so held by the appellate court in the previous suit. They also sought consequential amendment. That application was rejected. The petitioners challenge that order of rejection. 5. Perusal of the impugned order shows that the application has been rejected only on the ground of delay. The Trial Judge has observed that the application for amendment was made several years after the decision of the appellate court holding the petitioners to be protected licensees and has held that delay was not explained. It is well settled principle of law that delay alone may not be a ground 3 for refusing the amendment especially when the delay has not resulted in a claim being time barred or is such that it would cause irreparable injury to the other side. In the present case, no question of limitation is involved. Similarly, allowing amendment would not cause irreparable injury to the other side. The delay is explained by reason of the fact that the respondents themselves had prayed for stay of the suit on the ground of pendency of the previous suit and appeal therefrom and the suit was stayed. In my view, the Trial Judge has committed an error in rejecting the application for amendment only on the ground of delay. 6. Mr. Dani for the respondents submitted that the application has been rejected not only on the ground of delay but also on the ground that since the judgment in the previous suit has been produced on record no amendment was necessary. It is settled principle of law that in the absence of appropriate pleadings any amount of evidence cannot be looked into. The petitioners wanted to amend the pleadings to plead that they were protected licensees and it had been so held by the appellate court in the previous suit. The amendment was thus necessary to enable the Trial Court to look into the judgment of the appellate court in the 4 previous litigation. 7. For these reasons, the impugned judgment is set aside and the application for amendment filed by the petitioners is allowed. Amendment shall be carried out within 2 weeks from the receipt of writ by the Trial Court and the intimation thereof to the petitioners. 8. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)