1 wp7967.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7967 OF 2010 Dr. Ashok Purshottam Jhunjhunwala. ..PETITIONER -VERSUS- Smt. Chandabai Gulabsingh Rajput and others. ..RESPONDENTS ..... Mr. R.F. Totala, advocate for petitioner Mr. P.F. Patni, Advocate for respondent nos. 1 and 3. Mr. A.S. Bajaj, Advocate for respondent no.2. ..... CORAM : B.P. DHARMADHIKARI, J. DATE : 18th February, 2011. PER COURT : 1. Heard finally. Advocate Mr. Totala for petitioner-plaintiff contends that Special Civil Suit no. 57 of 2006 is for specific performance & property to be alloted by CIDCO to deceased husband of respondent no.1 formed subject matter of that agreement. During pendency of suit, it transpired that instead of that property some other property has been allotted by CIDCO, and therefore, by moving application under Order 6 Rule 17 of the Civil Procedure Code prayer was made to substitute the property so allotted in place of suit property. Trial court has erroneously found that if property is allowed to be substituted the nature of the suit itself undergoes change, and therefore, has rejected the application. 2 wp7967.10 2. Advocates Mr. Patni for respondent nos.1 and 3 and Mr. Bajaj for respondent no.2 support the impugned order. They point out that the agreement itself is denied and in any case property described in alleged agreement is admeasuring 51 R. The property now sought to be introduced is 63 R. It is further urged that application under Order 6 Rule 17 of Civil Procedure Code does not disclose the date of alleged knowledge and property now sought to be introduced has been allotted even prior to institution of suit. Hence, the proposed amendment introduces time bared cause of action. 3. After hearing the respective Counsel, I find that whether there was agreement between the parties, area of property covered thereby and its location are the matters which pertain to merits of the controversy and need not be gone into by this Court at this stage. The petitioner-plaintiff has approached for specific performance contending that the property to be allotted by CIDCO is to be purchased by him. Again validity of this plea can not be gone into. Now effort is to point out that instead of property described in alleged agreement actually some other property has been allotted and hence, prayer made was to substitute it as a suit property. Again correctness of this plea also can not be gone into at this stage. The plaintiff is claiming relief of specific performance also in relation to the substituted property on the basis of alleged agreement. The nature of suit does not undergo any change at all. Reason given by the trial Court is therefore unsustainable. 4. The question whether such substitution is permissible and whether the cause of action is changed or then time barred claim is being added are the issues which can be looked into by the trial 3 wp7967.10 Court after giving the parties necessary opportunity. Hence, leaving those contentions open for adjudication, the application for amendment is allowed. The necessary amendment be carried out by 15th March, 2011. Needless to mention, all the defences raised by the respondents before this Court are kept open and can be raised by them before trial Court. 5. Petition is thus allowed. No costs. (B.P. DHARMADHIKARI, J.) gas/wp7967.10