(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 2719 of 2009 Shaikh Anwar s/o. Ibrahim, Age : 46 years, Occupation : Service, R/o. House No. 49, Waghaskar Lane, .. Petitioner Bhingar, (Original Taluka & Dist. Ahmednagar. plaintiff) versus 1. Kalyan s/o. Baburao Kamble, Age : 45 years, Occupation : Business, R/o. H.No.40, Dane Lane, Bhingar, Taluka & Dist. Aurangabad. 2. Cantonment Officer, Age : Major, Occupation : Service, R/o. Bhingar, .. Respondents Cantonment Board, (Original Bhingar, defendant Taluka & Dist. Ahmednagar. nos.3 and 4) .................. Mr. M.B.W. Khan, Advocate, for the petitioner Mr. V.S. Bedre, Advocate, for respondent no.1. .................. (2) CORAM : B.R. GAVAI, J. DATE : 7TH JULY 2009. COURT’S ORDER : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. Since no order prejudicial to the interest of respondent no.2 is being passed, service of notice upon rule, on the said respondent is waived. 3. By way of present petition, the petitioner challenges the order dated 8th April 2009, passed by the learned 5th Joint Civil Judge (Senior Division), Ahmednagar, below Exhibit 86 in Regular Civil Suit No. 179/1999, thereby rejecting the application filed by the present petitioner for amendment of the plaint. 4. The petitioner had initially filed a suit for permanent injunction so as to restrain the defendants from opening a door on the southern side of his house. After the evidence of both the parties was recorded, an application came to be filed by the present petitioner, stating therein that during the pendency of the suit, the door was opened by the defendants and, as such, he wanted to seek a prayer for mandatory injunction for removal of the door. The said application is rejected. Hence, the present petition. 5. Mr. M.B.W. Khan, learned Counsel appearing for the (3) petitioner, submits that the trial court has grossly erred in rejecting the application. He submits that if amendment is not allowed, the suit of the present petitioner itself would render infructuous. He, therefore, submits that the trial court has erred in not exercising the jurisdiction in favour of grant of amendment. 6. Mr. V.S. Bedre, learned Counsel appearing for respondent no.1, vehemently opposes the petition. He submits that even in the application, there is not even a whisper as to when the door was allegedly opened. He, therefore, submits that the trial court has rightly rejected the application since the prayer was beyond limitation. He further submits that the application for amendment, at the fag end of the trial, has rightly been rejected. 7. The suit is filed in the year 1999 and would be governed by the position in law as was in existence prior to the amendment of the Code of Civil Procedure, 1908, and specifically Order VI Rule 17 was effected on 1st July 2002. Prior to the said date, there was no requirement as provided under proviso to Rule 17 of Order VI, by now. 8. It is settled law, that the courts are required to take liberal view while considering application for amendment. Since the amendment is pertaining to the suit which is filed prior to the amendment to the Code of Civil Procedure, 1908, requirement of exercise of due diligence would not come in the way of the present petitioner. In any case, the amendment which is sought to be incorporated pertains to subsequent development. (4) 9. In that view of the matter, I find that the trial court has erred in rejecting the application. In so far as question regarding limitation is concerned, the court, at the stage of grant of amendment, cannot go into the merits of the matter. The same can be considered at the stage of hearing of the suit. In any event, the respondents defendants will have a liberty to file additional written statement, so as to counter the averments made by way of amendment. In that view of the matter, the petition deserves to be allowed. 10. In the result, the petition is allowed. (i) The order dated 8th April 2009, passed by the learned 5th Joint Civil Judge (Senior Division), Ahmednagar, below Exhibit 86 in Regular Civil Suit No. 179/1999, is quashed and set aside. (ii) Needless to state, that the respondents shall be at liberty to file additional written statement in order to counter the averments made by way of amendment. 11. Rule is made absolute in the aforesaid terms. Parties shall bear their own costs. ( B.R. GAVAI ) JUDGE ...................... bgp/wp2719