1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.287 OF 2009 ... Saraswatibai w/o Chandrakant Patil, age 34 yrs, occ. Household, r/o Omerga, Tq. Omerga, Dist. Osmanabad. ...PETITIONER (Orig plaintiff) V E R S U S ..RESPONDENTS. Uddhav s/o Khanderao Rampure, age 48 yrs, occ. Business r/o Omerga Tq. Omerga Dist Osmanabad, presenting residing at Keshav Nagar, Near Ganpati Mandir, Hadapsar, Pune. Shri. V.D. Gunale, Advocate for the petitioner. Shri P. R. Katneshvarkar, Advocate for the respondent. CORAM : B.R. GAVAI, J : DATE : 9th JULY, 2009 PER COURT :- 1. Rule. Rule made returnable forthwith. Heard by consent. 2- By way of present petition, the petitioner challenges the order dated 21.04.2008 passed by the learned 3rd Jt. Civil Judge J.D. Omerga vide which the application filed by the present petitioner in RCS No.372/2000 for for amendment to the plaint, came to be rejected. 3- The petitioner has filed a suit for specific performance. After the evidence of the plaintiff was over, the petitioner has filed an application for amendment of the plaint so as to incorporate a prayer for refund of the earnest money which was given by him. Said application is rejected. Hence, present 2 petition. 4- Shri Gunale, the learned counsel appearing on behalf of the petitioner submits that the learned trial court has erred in rejecting the application. He submits that the suit is of the year 2000 and as such it was not proper on the part of the trial court to have rejected the application on the of ground of exercise of due diligence as provided in proviso under Order VI Rule 17 of Civil Procedure Code. He submits that at the stage of granting amendment application, the courts have to take liberal view and amendment ought to have been allowed. 5- Shri Katneshvarkar the learned counsel appearing on behalf of the respondent submits that the learned trial court has rightly rejected the application. He submits that the matter which is now raised is beyond limitation. He further submits that, exercise of due diligence is also relevant while considering an application for amendment. 6- Admittedly, the suit is filed prior to 01.07.2000 i.e the date on which an amendment to Civil Procedure Code came into effect. The legal position is very clear, that the courts have to take liberal view in grant of amendment and to allow such amendment which are necessary for complete adjudication of dispute between the parties. No doubt, that after amendment to Civil Procedure Code in 2002, a party seeking an amendment after the commencement of trial, has to satisfy a condition that inspite of exercise of due diligence the matter which is sought to be placed on record cold not be brought on record. However since the present suit is of 2000 said amendment would 3 not be applicable to the facts in present petition. I find that prayer which has been made by the present petitioner was necessary for complete and effective adjudication of the dispute between the parties. It is also a settled law that the merits of the matter cannot be gone into at the stage of amendment. In any event the respondent would be at liberty to amend his written statement and raise contentions regarding issue of limitation. In that view of the matter, the learned trial court has erred in rejecting the application. Rule is therefore made absolute in terms of prayer clause “C’. It is further made clear that, the respondent would be at liberty to make a consequential amendment to the written statement to raise all the ground he seeks to , so as to challenge the averments in the amended plaint. ( B. R. GAVAI ) JUDGE ..... aaa/wp287.09.odt