1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10274 OF 2009 M/s.Omex Builders & Contractors through Proprietor Bhojaj P. Kakeri (now deceased) 2 Bhojraj P.Karkera Prop.of M/s.Omex Builders & Contractors (now deceased) 1a Trishala Bhojraj Karkera 1b Reshma Sujith Bangera 1c Ramya Chitrek Bangera 1d Rishikesh Bhojraj Karkera ...Petitioners vs. Vijaynath Baban Pal ...Respondent Ms H.U.Shah i/b Mr.Y.R.Shah for the petitioners Mr.M.H.A. Sayyid for the respondent CORAM :A.S.OKA,J. DATE : JANUARY 15, 2010 JUDGMENT : 1 The petitioners who are the original plaintiffs have taken an exception to the Judgment and Order dated 14th October 2009 passed by the trial Court by which the Chamber Summons taken out by the petitioners for amendment of the plaint has been rejected. 2 The petitioners filed a suit against the respondent for possession of the suit premises which is room no.2 in Irani Chawl, Telli Galli, Survey no.38,Hissa no.3,4 and 6 corresponding to CTS No.471 ,416 and 415 (part),and admeasuring about 779.24 sq. meters situated at Andheri (East), Mumbai. The suit was filed in the year 1999 and the Chamber Summons was taken out in August 2009. A prayer in the Chamber Summons was for correcting the description of the land on which the room no.2 is situated. The Chamber Summons for amendment has been rejected on the ground that there is a gross delay in 2 filing the Chamber Summons. The second ground on which the application was rejected is that in view of proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code ), no satisfactory reasons have been set out as to why amendment could not be carried out prior to commencement of the trial. 3 The learned counsel for the petitioners submitted that the suit relates to room no.2 which is described as the suit premises in paragraph 7 of the plaint. It is submitted that the suit premises is situated on the property which is purchased by the petitioners by a conveyance dated 7th January 1981. She submitted that the amendment is only for correcting the description of the land on which the suit premises is situated. The learned counsel for the petitioners submitted that there is no dispute about the identity of the land and the suit premises and therefore, the amendment will not change the nature of the suit. 4 The learned counsel for the respondent opposed the Petition by submitting the description of the property is completely sought to be changed by adding the land bearing Survey No.48 Hissa No.6 and other properties. He submitted that the Chamber Summons was taken out after 10 years of institution of the suit after commencement of the trial. He submitted that by the proposed amendment altogether a different case is sought to be made out and therefore, the trial Court was justified in rejecting the prayer for amendment. He submitted that the proposed amendment is barred by limitation. 5 I have carefully considered the submissions. In the first paragraph of the plaint, the petitioners have 3 described the land as under : 1...The plaintiffs are the owners in respect of a piece of land bearing Survey No.38, Hissa Nos.3,4 and 6 corresponding to CTS.No.471, 416 and 415 (part) and admeasuring about 932 sq. yards equivalent to 779.24 sq. metres lying and situate at Village Gundawli, Taluka Andheri, Mumbai Suburban District hereinafter referred to as the said lands. By the proposed amendment, in paragraph 1 of the plaint, Survey no.48, Hissa No.6 is sought to be added after Survey no.38, Hissa Nos. 3 and 4 . After the figure 415(part) , the figure 415/107 is sought to be added. 6 In the prayers (a) (b)and (c) made in the plaint, the suit room is described as room no.2 , Irani Chawl, Telli Galli, Survey no.38, Hissa No.471 and 415 (part), Andheri (East), Mumbai400069 . If the said description of the land below the suit room is compared with the description in paragraph 1 of the plaint, there appears to be an error in the description in the prayer clause. This is sought to be corrected by incorporating the correct description. In short by the proposed amendment, the petitioners want to contend that the suit room no.2 is situated on land bearing survey no.38 Hissa No.3 C.T.S. No.471 and on the land bearing survey no.48 Hissa No.6 bearing C.T.S. No.415/107. The petitioners are relying upon deed of conveyance dated 7th February 1981 as a document of their title. The description which is sought to be incorporated is no different from the schedule of the sale deed and is consistent with the schedule. By the proposed amendment, no change is brought about in the identity of the property subject matter of the suit 4 i.e. ,room no.2. There is no dispute about identity of the room no.2. The proposed amendment does not change the nature of the suit.If the amendment is allowed, all contentions including bar of limitation will always remain open. 7 Since the suit is of the year 1999,the amended rule 17 of Order VI will have no application to the suit and hence, the prayer for carrying out amendment could not have been rejected on the basis of the proviso incorporated in Rule 17 of Order VI of the said Code with effect from 1st July 2003. 8 The learned trial Judge ought to have adopted a liberal approach while dealing with the prayer for amendment of the plaint considering the nature of the amendment. Hence, the petition must succeed. 7 Hence, I pass the following order : i) Impugned order dated 14th October 2009 is quashed and set aside. The Chamber Summons No.426 of 2009 is made absolute. ii)It is made clear that all objections of the respondent including the objection regarding bar of limitation are expressly kept open. iii)Amendment to be carried out within a period of two weeks from the date on which writ of this order is received by the trial Court. iv)It will be open for the respondent to file additional written statement within a period of 8 weeks from the date on which amended copy of the plaint is received by the respondent. v) The Petition is allowed on above terms. JUDGE