1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.295 OF 2007 Bhikan Trambak Chaudhari & Anr. .. Petitioners versus M/s.Shardha Construction & Ors. .. Respondents Mr.S.K.Chinchalikar for the petitioners. Mr.P.B.Gujar for respondent No.4. CORAM : A.S.OKA, J. DATE : 23rd February 2010. P.C.: . Heard learned counsel appearing for the petitioners and learned counsel appearing for the 4th respondent. The learned counsel appearing for the petitioner states that rest of the respondents have been served with the notice. The challenge in this writ petition under Article 227 of the Constitution of India is to an order by which application for amendment of plaint made by the applicants has been rejected. By the proposed amendment, the petitioners prayed for grant of permission to add paragraph 3A for incorporating a contention that flat subject matter of the suit has been purportedly transferred by the original defendants in favour of a third party by preparing bogus and illegal documents. The petitioners also prayed for impleading the purchaser as a party to the suit. A prayer is also made seeking permission to incorporate paragraph 3B. Paragraph 3B is by way of explanation to the contention raised by the defendants in their written statement that what was agreed to be sold to the petitioners was flat No.1 on the 2 ground floor. By the impugned order, the first part of the amendment was rejected on the ground that the same has been made at the fag end of the trial. The second part of the amendment is also rejected by the impugned order. 2. The learned counsel appearing for the petitioner submitted that the suit will not be governed by proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) as amended with effect from 1st July 2002. He submitted that the amendment became necessary on the basis of evidence adduced by the defendants. The learned counsel appearing for the 4th respondent submitted that the specific case of the defendants in written statement is that flat No.3 which is subject matter of the suit was transferred to one Mr.Hingmire and the said Mr.Hingmire has subsequently transferred it to proposed defendant No.6. He submitted that the petitioners do not want to implead the said Mr.Hingmire as a party. He submitted that apart from the fact that the application has been belatedly filed, it is not necessary to permit amendment. 3. I have given careful consideration to the submissions. As far as first part of the proposed amendment is concerned, the petitioners desire to implead a purchaser of the suit flat during pendency of the suit as a party defendant. The petitioners want to incorporate a challenge to the transactions effected by the defendants in respect of suit flat. The proviso incorporated to Rule 17 of Order VI of the said Code will not apply as the suit has been filed prior to 1st July 2002. Therefore, the Court ought to have adopted a liberal approach while considering 3 the application for amendment. 4. As far as second part of the amendment is concerned, it is by way of explanation to the defence of the defendants. What is sought to be pleaded by paragraph 3b is the evidence. Therefore, to that extent the amendment could not have been permitted. Hence, petition must succeed in part and I pass the following order: : O R D E R : (a) The impugned order dated 27thNovember 2006 is quashed and set aside. The application at Exhibit 131 is partly allowed to the extent of permitting impleadment of defendant No.6 and adding paragraph 3a. Rest of the amendment is rejected. (b) The amendment shall be carried out within a period of two weeks from the date on which writ of this order is received by the trial Court. (c) It will be open for the defendants to file additional written statement within a period of eight weeks from the date on which amended copy of the plaint is served. (d) All contentions of the parties on merits are kept open. (e) Writ petition is partly allowed in above terms with no orders as to costs. (A.S.OKA,J)