1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1714 OF 2008 Kisan Pandurang Shelke. .. Petitioner Vs Balaso Makbul @ Bhagbul Patil & Ors. .. Respondents ­­ Shri Vilas Kolekar for the Petitioner. ­­ CORAM : A.S.OKA, J. DATE : 31ST MARCH, 2010 P.C: . Notice of this Petition has been duly served to the Respondents. On 26th February, 2010, the son of the 2nd Respondent appeared in person and on behalf of the Respondents, he sought time to engage an advocate. Accordingly, time was granted till 19th March, 2010. The order dated 26th February, 2010 records that the Petition will be taken up for final disposal at the admission stage. No one has filed Vakalatnama on behalf of the Respondents. The Respondents are not present. 2. The Petitioner is the original Plaintiff who has filed a suit for specific performance of the alleged Agreement for Sale dated 21st July, 1970 executed by one Makbul Rajaba Patil. According to the case made out in the plaint, the present Respondents­Defendants are the legal representatives 2 of the said Makbul who died in the year 1988. 3. An application for amendment of the plaint was made at Exhibit – 64 by the Petitioner. The said application was filed on 8th August, 2007. In the said application, it is stated that in the affidavit in lieu of examination­in­chief filed by the Respondents, it is disclosed that the deceased Makbul had two more legal representatives by the name Smt. Shahjadbi Makbul Patil and Smt. Aminabi Saheblal Patel. It is stated in the application that the said Shahjadbi is reported to be dead. Therefore, a prayer was made in the said application for impleading the said Aminabi as a party Defendant No.4 and for carrying out consequential amendment. By the impugned order, the said application has been rejected by observing that the application for amendment was filed after recording of evidence of the Respondents has started and the amendment was belated. 4. After having considered the submissions made by the learned counsel appearing for the Petitioner, I find that the amendment ought to have been allowed. It is specifically stated in the application for amendment that in the affidavit in lieu of examination in chief filed by the Respondents, it was disclosed that the said Shahjadbi Makbul Patil and Smt. Aminabi Saheblal Patel were the two other legal representatives of the deceased Makbul. The said specific assertion made in Paragraph 3 of the application has not been specifically denied by the Respondents in the reply dated 5th September, 2007 and the only ground pleaded is of delay. The 3 case of the Petitioner is that he became aware of the names of the said two other legal representatives of the deceased Makbul only after the affidavit in lieu of the examination­in­chief filed by the Respondents. In view of this assertion, it is obvious that the application for amendment could not have been made earlier. Moreover, the suit being of the year 1998, the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 incorporated by the amendment of the year 2002 will not apply to the present case. Therefore, the amendment ought to have been allowed. Even if the amendment is allowed, the defence of bar of limitation always remains open to the Respondents as well as to the added Defendant which can be agitated by filing a written statement. The application for amendment could not have been rejected on the ground of delay. 5. Hence, I pass the following order. (a) The impugned order dated 20th November, 2007 is quashed and set aside and the application made by the Petitioner at Exhibit­64 is allowed. (b) Amendment shall be carried out within a period of two weeks from the date on which the writ of this order is received by the Trial Court. (c) It will be open for the Respondents herein to file 4 additional written statement within a period of eight weeks from the date on which they are served with the amended copy of the Plaint. (d) It is obvious that the contention of the added Defendant regarding bar of limitation is kept open. (e) The amount of Rs.2,000/­ deposited by the Petitioner in this Court shall be transferred to the Trial Court. The Respondents will be entitled to withdraw the said amount. (f) The Writ Petition is allowed in above terms. (A.S.OKA, J)