*1* CHS-1512-09.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1512 OF 2009 IN SUIT NO.1193 OF 2007 Neeraj Maheshwari & Anr. ... Plaintiffs V/s. Dr. Sunil Rebello ... Defendant Mr. Mangal Bhandari with Mr. Santosh Shetty for the Plaintiffs. Mr. R.S. Tripathi for the Defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 28 th November, 2011. P.C. : 1. This is Plaintiffs’ Chamber Summons seeking amendment of the plaint in terms of the Schedule. 2. It is stated in the affidavit-in-support that, by inadvertence and mistake, the reference to the Agreement dated 30th January, 2004 remained to be made in the prayer clause of the plaint. In the body of the plaint, there is a reference made to an oral as also a written Agreement of this date and also the prior Agreement dated 30th October, 2003. It is only in the prayer clause of the plaint that the reference remained to be made and incorporated. 3. Therefore, according to Mr. Bhandari, the learned Counsel *2* CHS-1512-09.sxw appearing on behalf of the Plaintiffs, no prejudice will be caused if the plaint is allowed to be amended in terms of the Schedule. 4. Mr. Tripathi, the learned Counsel appearing on behalf of the Defendant, on the other hand, submits that this Chamber Summons should be dismissed because the amendment is ex-facie time barred. Even if the amended plea is allowed, what it incorporates is a reference to the Agreement of 2004. The Suit is filed on 17th February, 2007 i.e. after January, 2007, on which date the limitation to file such a Suit came to an end. There is no elaborate or detailed enquiry necessary, according to Mr. Tripathi and, on the face of it, the claim is time barred and, therefore, the Chamber Summons be rejected. 5. It is not possible to agree with Mr. Tripathi because ultimately the Court will have to decide whether the agreement for transfer and sale of an immovable property was to be performed within a particular period and, therefore, time starts running from end of that period, or, there was no period stipulated for performance and, therefore, the time will start running from the date the performance is refused. In such circumstances, the settled principle is that an amendment to the plaint to incorporate an alleged time bar claim can be granted, subject to the objection of limitation and time bar being left open. 6. Equally, the arguments of Mr. Tripathi that no amendment can be granted at this stage as it is barred by the amended Order 6 Rule 17 of the Code of Civil Procedure cannot be accepted. 7. On the own showing of the parties such an amendment can be *3* CHS-1512-09.sxw granted provided a case is made out in terms of the amended provision. In the instant case, on 24th March, 2009, all that this Court did was to decide the Notice of Motion for interim relief in this Suit. While delivering its order on this Notice of Motion, what the Court did was to frame the issues. Beyond framing of the issues and giving directions to file the affidavit of documents and the affidavit in lieu of examination-in-chief, nothing has been done which would enable this Court to conclude in the peculiar facts that the trial has commenced. In any event, what the Plaintiffs have pointed out is that they were not aware of the omissions on their part to incorporate the reference to the Agreement dated 30th January, 2004 in the prayer clause earlier. It is only when they realized that there was an omission and inadvertent mistake, that they have applied for amendment. In these circumstances, I am satisfied that even otherwise this case is covered by the proviso to the amended Order 6 Rule 17 of the Code of Civil Procedure. 8. Therefore, without prejudice to the rights and contentions of the Defendant, who urged that no relief on the basis of the amended plea can be granted because the claim in the Suit is time barred, that this Chamber Summons is allowed. It is accordingly made absolute in terms of prayer clause (a) without prejudice to the rights and contentions of the parties on the plea of limitation and merits. 9. Amendment be carried out within a period of two weeks from the date of receipt of a copy of this order. Amended plaint be served within two weeks thereafter. (S.C. Dharmadhikari, J.)