1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2727 OF 2009 Subhash Yeshwant Mane .. Petitioner versus Jaywant Hindurao Jadhav (since deceased) through his heirs & Ors. .. Respondents Ms.Dipti Pawar i/by Mr.S.S.Patwardhan for the petitioner. Mr.Amit Borkar for respondent Nos.5 to 9. CORAM : A.S.OKA, J. DATE : 1st February 2010. P.C: . Heard learned counsel appearing for the petitioner and learned counsel appearing for respondent Nos.5 to 19. Rest of the respondents are served. Notice for final disposal was issued on 22nd July 2009. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 18th November 2008 by which an application for amendment of the plaint made by the petitioner has been rejected. 2. The respondents are the legal representatives of one Jaywantrao who was the original defendant. The case made out in the plaint is that the suit properties described in paragraph 1 of the plaint were owned by the original defendant who died during the pendency of the suit. The case of the petitioner is that the deceased defendant had executed an Agreement for Development dated 27th May 1998 in favour of the petitioner. According to the petitioner, the said 2 Agreement was executed by the 2nd respondent as a constituted attorney which was also signed by the 1st and 3rd respondents. Reliance is placed on Power of Attorney executed in favour of the petitioner by the 2nd respondent. Reliance is placed on various payments made by the petitioner on the basis of the alleged Agreement. The prayer in the suit is in for a decree in the nature of specific performance as against the 1st to 3rd respondents. There is another prayer for possession. There are consequential reliefs sought in the suit. 3. By the proposed amendment it is contended that the 1st respondent has filed a suit for partition being Regular Civil Suit No.516 of 1977 and it is contended by the 1st respondent that as per the alleged Will of the deceased- defendant she was entitled to receive one half share of the deceased-original defendant. The amendment is for adding averments in paragraph 1 of the plaint. By the proposed amendment, the petitioner wants to incorporate that he intends to claim relief in respect of one half share which may be allotted to the 1st respondent in the properties already described in paragraph 1. In the alternative, the petitioner wants to claim a share in the property as per the agreement dated 27th May 1998 executed by the deceased-defendant in favour of the petitioner. By the proposed amendment, it is sought to be contended that out of share received by the 1st respondent in the suit properties described in paragraph 1, the petitioner may be granted southern one half portion or northern one half portion. The application for amendment has been rejected on the ground that the suit is of the year 1999 and the amendment based on a suit of the year 1977 was sought to be made in the year 2008. The learned Judge observed that affidavit in 3 lieu of examination in chief has been filed by the petitioner. The third reason given is that the property described in the plaint is different from the property in the alleged Development Agreement. 4. The opposition of the learned counsel appearing for 5th to 9th respondents is mainly on the ground that the suit is part-heard and that a contention has been already raised in the written statement that the description of the suit property is different from the description of the property contained in the alleged Development Agreement. 5. I have considered the submissions. The suit is of the year 1999 and hence it will not be governed by constraints of proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908. Perusal of the text of the amendment shows that there is not attempt to change the description of the properties incorporated in paragraph 1 of the plaint. Therefore, even if amendment is permitted, the objection raised by the respondents in the written statement as regards the description of the property remains. By way of amendment it is sought to be contended that the 1st respondent was likely to get one half share in the suit property and a prayer is sought to be incorporated claiming the said share which may be allotted to the 1st respondent. 6. The proposed amendment does not change the nature of the suit and there is no attempt to withdraw any admission. Therefore, the trial Court ought to have adopted a liberal approach and allowed amendment. The respondents have not yet cross-examined the petitioner. Hence, the petition must succeed and I 4 pass the following order: : O R D E R : (a) The impugned order dated 19th November 2008 is quashed and set aside. (b) The application made at Exhibit 166 is hereby allowed. (c) The 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. (d) It will be open for the respondents to file additional written statement within a period of eight weeks from the date on which a copy of the amended plaint is served to them. (A.S.OKA,J)