1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 3830 0F 2009 *** Tulshiram S/o Vithal Kale Versus Radhabai W/o Hariba Hale and others *** 1. Heard learned counsel for the parties. 2. Petitioner is the original plaintiff in Regular Civil Suit NO.33 of 2005 filed on 4th March, 2005. Copy of the suit is on record Annexure-A. Mr. Gunale, who appears for Respondent Nos.3 and 7, points out copy of the sale deed which is on record. Incidentally, other respondents have been served, however, none appears for them. Copy of the plaint, makes it clear that the petitioner/ plaintiff has sought possession of the property i.e. land Survey No.38/A and 39/B corresponding new Survey Nos. 78 and 79, new Gat Nos.225, 226 admeasuring 7 Acres 4 Gunthas. Petitioner/ plaintiff also seeks mesne profits. Both the learned counsel are unable to inform the Court as to whether defendants in the suit, have filed written statement. However, both of them are in agreement that issues have not been framed. The application for amendment filed by the plaintiff is dated 2nd April, 2008. Annexure-B is the copy on record. By this 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. application, plaintiff/ petitioner seeks amendment in prayer clause. According to the counsel for the Petitioner, the amendment sought is formal. Declaration is sought that the sale deed bearing Day Book No. 2253 of 1987, may kindly be declared as null and void. If this amendment is permitted, the nature of the suit would remain as it is. Counsel for the Petitioner further submits that the order passed by the trial Court is illegal and amendment ought to have been allowed. 3. Mr. Gunale submits that the order passed by the trial Court is legal, proper. He invited my attention to the date of sale deed by defendant No.1 in favour of defendant No.7 on 23rd July, 1987. Reply filed in the trial Court by defendant Nos.1, 2, 4, 5, 6, 7 and 8 is on record. This reply appears to have been filed on 19th April, 2008. With the assistance of learned counsel Mr. Gunale, I have read this reply. The contentions raised in the reply is that the amendment which is now sought by the petitioner/ plaintiff is beyond the period of limitation. Sale deed has been executed in the year 1987, plaintiff was having knowledge about the sale deed. He ought to have made pleadings earlier, even on 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the date of filing of the suit itself. However, ground is raised that within three years from the date of sale deed, suit ought to have been filed. In substance, contention is raised that the proposed amendment now is barred by law of limitation and should not have been allowed. With these contentions, application of the petitioner/ plaintiff is sought to be rejected. 4. Order passed by the trial Court, para 9, has been read by counsel Mr. Gunale. Trial Court has observed that the amendment sought is beyond the period of limitation. Plaintiff was having knowledge of the sale deed and three years is the period of limitation. 5. It is unfortunate that the trial Court while deciding the application for amendment has not only entered into merits of the application but has recorded a finding virtually that the suit is beyond the period of limitation. That is not the purport of Order 6 Rul3e 17 of the Civil Procedure Code [the Code, for short]. It is to be noticed that the Order 6 Rule 17 of the Code has suffer3ed recent amendment by the Legislature. Said amendment is made enforceable from 1st July, 2002. In the case 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. on hand, suit is filed on 4th March, 2005. Clearly, the amended provision of Order 6 Rule 17 of the Code are applicable. However, the real controversy among the parties is one of the prime test for considering the amendments. Objection or contention pertaining to limitation always can be raised by the defendants if already they have filed written statement, even then, they can raise such objection while filing additional written statement to the amended pleadings. The Honourable Supreme Court in a recent judgment delivered on 16th October, 2009 has taken a survey of the law of amendment i.e. Order 6 Rule 17 of the Code, in the matter of "Revajeetu Builders & Developers V/s Narayanaswamy & Sons & Others" reported in 2009 (7) Supreme 333. Few guidelines at the close of judgmentin para 67 have been laid down by the Honourable Supreme Court. In my view, in view of the judgment of Honourable Supreme Court, this petition needs to be allowed by invoking extraordinary jurisdiction for the reason, order being illegal and perverse. 6. Order impugned is quashed and set aside. Application filed by the plaintiff/ petitioner is allowed. All the defendants 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. are permitted to file additional written statement, if they have already filed the written statement, against the amended pleadings, or amended part of the pleadings and take appropriate defence as they wish. In that circumstances, the learned Judge shall decide the suit on its own merits and in accordance with the evidence led on behalf of the parties. Petition is allowed in above terms with no order as to costs. [S.B.DESHMUKH, J.] Dated:18/02/2010. ans/3830