1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.183 OF 2003 Vinayak Sadashiv Patil .. Petitioner versus Shriram Shivram Mhatre & Ors. .. Respondents Mr.Navin B. Shah for the petitioner. Mr.V.Z.Kankaria for respondent No.1. Mr.S.D.Rayrikar, A.G.P for respondent No.2. CORAM : A.S.OKA, J. DATE : 17th September 2009. P.C.: . By this writ petition under Article 227 of the Constitution of India, the petitioner who is the 1st defendant has taken an exception to the order dated 29th November 1999 by which the 1st respondent plaintiff has been permitted to amend the plaint. 2. The 1st respondent plaintiff filed a suit in the year 1992 against the petitioner, the State of Maharashtra and Executive Engineer of MIDC for a money decree and for consequential reliefs. According to the case made out by the 1st respondent, an offer was invited by the State of Maharashtra for carrying out certain work. The allegation in the plaint is that it was agreed between the 1st respondent and the petitioner that the petitioner will fill in the tender and if the contract is awarded, he will appoint the 1st respondent 2 plaintiff as a sub-contractor. Accordingly, contract was awarded and infact the petitioner executed a power of attorney in favour of the 1st respondent. The dispute relates to the amount payable to the 1st respondent plaintiff on account of the work carried out by him under the contract. 3. An application for amendment of the plaint was filed by the 1st respondent on 19th August 1999. It was contended in the application that in the written statement filed by the petitioner a contention was raised that the tender deposit was made by a partnership firm of the petitioner and not by the petitioner. Therefore, by the application for amendment, a prayer was made for incorporating the name of M/s.P.S.Patil, a partnership firm through the petitioner as it is partner as a defendant in place of the name of the petitioner. The said application has been allowed by the impugned order. 4. The learned counsel appearing for the petitioner states that on the date on which the amendment was permitted, the suit against the partnership firm was barred by limitation in as much as the money suit was filed in the year 1992 and the amendment was applied for on 19th August 1999. He submitted that this was not a case of mis-description in asmuch as in the reply filed by the petitioner to the application for temporary injunction, the objection that the contract was awarded to the partnership firm and not to the petitioner was specifically raised by the petitioner. He submitted that in view of sub-rule 5 of Rule 10 of Order I of the Code of Civil Procedure, 1908, the suit will have to be taken as filed against the partnership firm on the date 3 on which summons of the suit will be served on the partnership firm. He submitted that even assuming that a case for permitting amendment was made out, this Court will have to exercise power under Rule 11 of Order VII of the said Code by rejecting the plaint as the same is barred by limitation. The learned counsel appearing for the 1st respondent supported the impugned order. 5. I have carefully considered the submissions. Under the impugned order, the amendment of the plaint has been allowed. The effect of the impugned order is that the name of the petitioner as a defendant in his personal capacity will be replaced by the name of the partnership firm of the petitioner and the present petitioner will be described as a partner of the said firm. Merely because substitution in this manner is allowed under the impugned order, the issue of bar of limitation remains open. Grant of amendment of plaint is always subject to issue of limitation and notwithstanding permission granted by the trial Court to carry out amendment, the defendant can always raise a plea of bar of limitation by filing additional written statement. Merely because amendment is allowed, the same does not amount to extension of period of limitation and issue remains open to be agitated by the parties. 6. In the circumstances, though no interference deserves to be made with the impugned order, it is clarified that it will be open for the petitioner to file additional written statement and to raise all permissible contentions 4 including contention regarding bar of limitation. As far as prayer for rejection of the plaint is concerned, the said power can be exercised by the trial Court at any stage of proceedings and therefore, the petitioner can always file appropriate proceedings in that behalf. 7. Subject to what is observed above, the writ petition is rejected. It will be open for the petitioner to file additional written statement within a period of eight weeks from today. (A.S.OKA,J)