1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1930 OF 2010 Kalawatibai D/o. Manikreddy Bhingole, Age 46 yrs., Occu. Business, R/o. Aurad (Sha), Tq. Nilanga, Dist. Latur. ....Petitioner. Versus 1. Karimsab s/o Ismailsab Bagwan, Age 46 yrs., Occu. Business, R/o. Aurad (Sha), Tq. Nilanga, Dist. Latur. 2. Nizamsab s/o. Talabsan Baagwan (Deceased through LRs.) 2/1. Lalbee w/o Nizamsab Bagwan, Age 82 yrs., Occu. Household, 2/2. Najirsab s/o Nizamsab Bagwan, Age 62 yrs., Occu. Business, 2/3. Yunus s/o. Nizamsab Bagwan, Age 60 yrs., Occu. Business, 2/4. Rabani s/o. Nizamsab Bagwan, Age 55 yrs., Occu. Business, 2/5. Ayub s/o. Nizamsab Bagwan, Age 50 yrs., Occu. Business, 2/6. Vajid s/o. Nizamsab Bagwan, Age 45 yrs., Occu. Business, 2/7. Taiyab s/o. Nizamsab Bagwan, Age 47 yrs., Occu. Business, 2/8. Saminurbee w/o. Basunesab Bagwan, Age 64 yrs., Occu. Household, 2/9. Shahajadbee w/o. Ajamoddin Bagwan, Age 57 yrs., Occu. Household, 2 2.10. Risalatbee w/o. Khudboddin Bagwan, Age 51 yrs., Occu. Household, All R/o. Aurad (Sha), Tq. Nilanga, Dist. Latur. ....Respondents. Shri. P.B. Patil, Advocate for the petitioner. Smt. M.D. Thube-Mhase, Advocate for the respondent No. 2/1 to 2/7. CORAM : R.M. BORDE, J. DATE : 5th April, 2010 ORAL JUDGMENT : 1. Heard respective counsel appearing for parties. 2. Rule. With the consent of parties, the matter is taken up for final disposal at the stage of admission. 3. An application seeking amendment to the plaint tendered by the petitioner/original plaintiff has been rejected by the Trial Court in view of the order passed on 27.1.2010 below Exh. 185 in Special Civil Suit No. 34 of 2000 and the said order passed by the Trial court is subjected to challenge in this writ petition. 4. The petitioner/original plaintiff instituted suit, claiming a decree of specific performance of agreement against the defendants. It is not necessary to dwell into the factual aspects of the matter. Suffice it to say that the suit presented by the petitioner was decreed by the Trial Court 3 in view of the judgment and decree passed on 5.10.2005. The original defendants presented appeal raising exception to the decree passed by the Trial Court before the First Appellate Court being Regular Civil Appeal No. 97/2005. The appeal came to be heard and disposed of by District Judge-1, Nilanga, who had allowed the same and the matter came to be remitted back to the Trial Court for extending an opportunity of hearing to plaintiff and for examining herself. The Trial Court was directed to record the evidence and to decide the matter afresh. In pursuance to the order of remand passed by the First Appellate Court, the matter was taken up for fresh consideration by the Trial Court. The original defendant No. 2 presented an application seeking amendment to written statement on 31st August 2007. The application tendered by the defendant No. 2 seeking amendment in the written statement is heard and the Trial Court permitted the defendant to carry out the amendment in the written statement by an order dated 7.9.2007. The plaintiff thereafter presented an application seeking amendment to the plaint on 24th November 2009. The plaintiff contends in his application that the defendant No. 2 presented the written statement on 21st October 2000, however, did not submit the agreement to sell in question alongwith the written statement, which was presented on 13th of September 2005. The judgment in the suit was pronounced by the Trial Court on 5th October 2005. The plaintiff did not have any opportunity to challenge his agreement to sell which was placed on record at the stage of conclusion of the proceedings before the Trial Court. According to the 4 plaintiff, the document is false and fabricated one and he intends to get it examined at the hands of hand writing expert. Accordingly, the amendment was proposed in the plaint. The Trial Court, however, rejected the application tendered by the plaintiff. 5. It ought to be considered that although the agreement to sell in question was referred in the written statement, admittedly the copy thereof came to be placed on record at the flag end of the proceedings before the Trial Court on 13.9.2005. Obviously, therefore, the plaintiff did not have an opportunity to plead in respect of document and challenge the genuineness thereof. After the matter was remanded by the First Appellate Court for consideration of the matter on limited issue, the defendant No. 2 requested permission of the Court for amending the written statement. The defendant No. 2 effected changes in the pleadings and thereby expanded the scope of inquiry by the Trial Court. In these circumstances, the plaintiff was justified in approaching the Court, requesting for the permission of the Court to amend the plaint. It is further to be taken note of that the First Appellate Court while remanding the matter back to the Trial Court, has given liberty to the parties to place on record additional evidence. Thus, the matter is open for consideration before the Trial Court. It cannot be said that the proposed amendment changes the nature of the suit or defeats the defense of limitation, if any, available to the defendants. The suit is presented in the year 2000 and the amended provisions of the Code are 5 made enforceable since 2007. In this view of the matter, the suit would be governed by the unamended provisions of Code of Civil Procedure and as such, the limitation imposed in the proviso to Rule 17, Order 6 (Amended) are not attracted. Considering all these aspects, I am of the view that the Trial Court ought to have considered the application presented by the original plaintiff/petitioner herein seeking amendment to the plaint, favourably. 6. Hence, the writ petition deserves to be allowed and the same is accordingly allowed. The order passed by the Civil Judge, Senior Division, Nilanga below Exh. 185 in Special Civil Suit No. 34/2000 is quashed and set aside and the application tendered by the plaintiff/petitioner herein seeking amendment to the plaint shall be deemed to have been allowed. The defendants would obviously be entitled to answer the contentions raised in the amended plaint by extending request for permitting them for causing further amendment in the written statement. Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/wp1930.10