1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5512 OF 2009 Sau.Chhaya Prakash Karpe Petitioner versus Balkrishna Narayan Pingale and others Respondents Mr.J.Shekhar i/by J.Shekhar & Co. for petitioner. Mr.Uday Warunjikar for respondents 1 and 2. CORAM : A.S.OKA, J. DATE : 05th March 2010 PC :- 1. Submissions of the learned counsel for parties are heard on the earlier date. On 23rd July 2009 notice was issued by this Court to the respondents. On 4th January 2010 notice for final disposal was issued. 2. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 27th April 2009 by which application for amendment of the plaint made by the petitioner has been rejected. The suit is filed in the year 2004 by the petitioner for partition and separate possession. An application for amendment of 2 the plaint at Exhibit-68 was filed on 13th April 2009. In the application for amendment of the plaint it was contended that the petitioner recently became aware that there were certain other properties of the joint hindu family in which they had half share each. Therefore, a prayer was made for incorporating the description of the two properties. Another amendment sought was for incorporating a prayer that the matter of effecting partition of the properties sought to be incorporated in clause (b) of paragraph 1 of the plaint be referred to the District Collector. The said application was contested by the second respondent-second defendant. The application has been rejected relying upon proviso to Order VI, Rule 17 of the Code of Civil Procedure. The Trial Court held that in the written statement filed by the defendants in the suit a specific contention has been raised that certain properties have not been incorporated in the plaint and an attempt is made to carry out the amendment at a stage when the suit is posted for judgment. 3. The learned counsel appearing for the petitioner (first plaintiff) pointed out from the Roznama dated 4th April 2009 that certain documents were produced by the defendants along with list at Exhibit-66 which disclose that there were certain other properties which ought to have been included in the list of suit properties. He pointed out that the said documents were placed on record at the 3 stage of final arguments in the suit. He submitted that in the written statement filed in the present suit, no particulars of the properties which were not allegedly not incorporated in the plaint were set out. 4. The learned counsel for the first and second respondents submitted the impugned order. He submitted that as the suit was filed in the year 2004, proviso to Rule 17 of Order VII of the Code of Civil Procedure, 1908 will certainly apply. He submitted that no reasons were given as to why the application was made so belatedly. He submitted that there is material on record to show that the plaintiffs were aware about the said properties which were sought to be incorporated by way of amendment. He submitted that the proposed amendment was barred by law of limitation. 5. I have given careful consideration to the submissions. In the application for amendment, the plaintiffs have stated that recently they became aware that there were two other properties in which they have one sixth share each. A perusal of the Roznama as well as list of documents Exhibit-66 shows that the documents were produced by the first defendant/first respondent on 4th April 2009 when the suit was fixed for hearing of the arguments. Property register card of city survey no.6800 was produced along with 7/12 extract of gat no.430. The said documents relate to the properties which are sought to be 4 incorporated by way of amendment. The application for amendment was made on 13th April 2009. Therefore, there was sufficient explanation as to why amendment could not be moved before the suit was fixed for hearing. Even if amendment is allowed, the issue of bar of limitation always remains open. Therefore, this was a case where amendment ought to have been allowed to avoid multiplicity of proceedings. Even if amendment relating to the direction to the Collector is not incorporated, if a decree is to be passed, the Court is bound to follow Section 54 of the Code of Civil Procedure, 1908. However, considering the stage at which amendment is sought, the petitioner will have to pay costs to first and second respondents. 6. Hence, I pass following order:- A) The impugned judgment and order dated 27th April 2009 is quashed and set aside; B) Application at Exhibit-68 is allowed subject to original plaintiffs paying costs of Rs.7,500/- to first and second respondents within eight weeks from today. Deposit of the amount of costs with the Trial Court within the time stipulated will be treated as a sufficient compliance; 5 C) Amendment shall be permitted to be carried out within two weeks from the date on which compliance is made with the order of payment of costs; D) It is obvious that the respondents will be entitled to file additional written statement to the amended plaint raising all permissible contentions including the contention of bar of limitation; E) All contentions of parties on suit are kept open; F) Writ Petition is allowed in the above terms with no order as to costs. (A.S.OKA, J.)