1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8327 OF 2009 Abdul Razak Ibrahim Ladha & Anr. .. Petitioners versus M.C.G.M & Anr. .. Respondents Mr.K.D.Jha for the petitioners. Mr.M.M.Malwankar for respondent No.1-B.M.C. CORAM : A.S.OKA, J. DATE : 15th March 2010. P.C.: . Heard learned counsel appearing for the petitioners and learned counsel appearing for the 1st respondent. The learned counsel appearing for the petitioners states that he is appearing even for the 2nd respondent who is the original plaintiff No.2. He states that the 2nd respondent has no objection if this petition is allowed. 2. A chamber summons was taken out by the petitioners for various reliefs. The first relief sought was for substitution of the petitioners in place of plaintiffs by deleting the names of the original plaintiffs. It is stated that the original 1st plaintiff died on 31st October 2007. In the affidavit in support of the chamber summons it is stated that substitution is claimed under Rule 10 of Order XXII of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). By the impugned order, the trial Judge made the chamber 2 summons partly absolute. The prayer for substitution was not granted. Another prayer which was not granted was for adding a challenge to order dated 3rd July 2000 passed by the 1st respondent Municipal Corporation. As far as prayer for substitution is concerned, the learned Judge seems to be under impression that the application was filed under Rule 3 of Order XXII of the said Code. In fact, the application was filed under Rule 10 of Order XXII of the said Code which was supported by averments made in the affidavit in support. Hence there is no question of applying for setting aside the abatement. The 1st plaintiff has died and the 2nd plaintiff has no objection for granting said prayer. As far as other part of the amendment which is rejected is concerned, the petitioners are seeking to introduce a challenge to order dated 3rd July 2000. The said order has been passed after the institution of the suit. Even if amendment is allowed, defence of bar of limitation always remains open and therefore, the entire amendment ought to have been allowed. 3. Hence, petition is disposed of by passing following order: : O R D E R : (a) The impugned order dated 9th September 2009 is modified. In addition to the amendment which is already permitted under the impugned order, the petitioners are permitted to carry out amendment to the plaint in terms of clause 1 and clause 4 of the Schedule to the chamber summons. (b) Amendment to be carried out within two weeks from the date on 3 which writ of this order is received by the trial Court. (c) The 1st respondent will be entitled to file additional written statement to the amended plaint within a period of eight weeks from the date on which copy of the amended plaint is served to the 1st respondent. (d) It is made clear that all contentions including the contention of bar of limitation are kept open which can be raised by the 1st respondent in the additional written statement. (e) Writ petition is allowed in above terms. (A.S.OKA,J)