1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 3806/2009 ( Jugal Khemchand Agrawal -: versus :- Pandurang Shivram Pise and others .) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : NOVEMBER 13, 2 0 0 9. Heard Shri K.V. Thomas, learned counsel for petitioner and Shri R.K. Thakkar, learned counsel for respondent nos. 1 and 2. Writ Petition is to be finally disposed of as per orders dated 10.09.2009. Respondent no.3 subsequent purchaser has chosen not to appear though he is served. Learned counsel for petitioner points out that, after filing of the suit, when present respondent Nos.1 and 2 pleaded in their written statement, sale deed in favour of respondent no.3, immediately respondent no.3 was added as party defendant in the suit. Thereafter, petitioner sought details of sale transaction from defendant Nos. 1 and 2 and immediately after those details were furnished within 7 days, application under Order Order VI Rule 17 of Code of Civil Procedure was filed raising appropriate challenges in relation to that sale deed for prayer to direct respondent No.3 to join 2 respondent Nos. 1 and 2 in execution of sale deed in favour of petitioner. Learned Counsel for respondent Nos. 1 and 2 states that respondent no.3 was added as party defendant in the year 2005 and the necessary payers could have been made in 2005 itself. The factual details given by defendants were not required for making such prayer in the plaint. He therefore, argues that a prayer asking respondent no.3 to joint respondent nos. 1 and 2 in execution of sale deed has become time barred. He contends that this limitation aspect raises a serious question and if amendment is allowed, serious prejudice would be caused to respondent nos. 1 and 2, thereby. He relies upon the judgment of Hon’ble Apex Court reported at AIR 2009 SC 1433 (Vidyabai & others .vrs. Padmalatha and another ), to urge that the provisions of Order VI Rule 17, particularly proviso thereto which is in negative language, does not permit Court to allow amendment in such circumstances. With the assistance of learned counsel, I have perused the papers and I find that though petitioner joined respondent no.2 as party defendant no.3 way back in 2005, petitioner was prosecuting the suit and the details of sale transaction were sought for by the petitioner from respondent nos. 1 and 2. The said details are sought by moving express application and it is not in dispute that those details are called for by the trial Court, vide its order dated 07.01.2008. It is also not in dispute that immediately after the details were furnished, application for amendment has been moved. It therefore, cannot be said that the plaintiff was acting malafidely or was trying to kill the time because 3 killing of time was to act to his prejudice. The judgment of Hon’ble Apex Court permits such application for amendment to be granted, if the court comes to conclusion that inspite of due diligence, the amendment could not have been effected by the parties earlier, the same can be allowed. The facts here clearly show that the plaintiff was not negligent and had taken steps immediately after getting knowledge of the necessary facts. It is no doubt true that in the meanwhile the petitioner / plaintiff has filed affidavit of his examination in chief on 18.8.2007, However, his cross examination is yet to begin. In the circumstances, the court below could not have rejected his prayer for amendment. So far as the contention of learned counsel for respondent, about bar of limitation in relation to prayer [aa] is concerned, the said objection is kept open including the counter contention of its relevance for adjudication at appropriate stage in the Civil Suit. Writ Petition is allowed. Necessary amendment be carried by 04.12.2009. Respondents/defendants are at liberty to carry out consequential amendment, if any. Rule accordingly. No costs. JUDGE Rgd.