1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3866 OF 2009 Rajaram Mahadev Ghatage & Ors. ...Petitioners vs. Dynandeo Sitaram Patil & Ors. ...Respondents Mr.P.D.Dalvi for the petitioners Mr.A.M.Adagule for respondent no.1 CORAM :A.S.OKA,J. DATE : OCTOBER 9, 2009 P.C. 1 Heard the learned counsel for the parties. The petitioners are the original plaintiffs and the respondents are the defendants. By order dated 29 th August 2003 the petition was ordered to be decided finally at the stage of admission. The suit filed by the petitioners is for declaration of ownership and for injunction. The suit was contested by the respondents by filing the written statement. One of the contentions raised in the written statement was that one Shashikant Patil was a necessary and proper party to the suit and he has not been impleaded as a party to the suit. The petitioners applied for amendment of the plaint. The prayer in the said application for amendment was for impleading the said Shashikant Patil as a party defendant. Further prayer was for permitting consequential amendment for contending that the 1 st respondent (1 st defendant) has purported to transfer land 2 bearing Gat no.70/1/7 by showing incorrect boundaries. A contention was sought to be raised that while selling the suit property to the proposed defendant, the first respondent has deliberately shown incorrect boundaries. Based on proviso to Rule 17 of Order VII of the Code of Civil Procedure,1908, which as brought on statute book on 1 st July 2002 the learned trial Judge rejected the application for amendment. 2 The learned counsel for the 1 st and 2 nd respondents stated that the amendment is not granted mainly on the ground of delay. He submitted that the petitioners were aware that the proposed defendant was a necessary party right from the year 2003 and there is no explanation as to why the petitioners waited till the year 2009. He, therefore, submitted that the trial court was justified in rejecting the prayer for amendment. 3 After having considered the submissions, I find that the trial court has taken an erroneous approach. The proviso to rule 16 of Order VII of the said Code introduced in the said code on 1 st July 2002 was not applicable to the present suit which was filed prior in point of time. All that the petitioners sought was addition of a party who is claiming to be the purchaser of the suit property from the 1 st defendant. The amendment was based on the contention in the written 3 statement of the 1 st defendant that the proposed defendant was a necessary party to the suit. The contention of the 1 st respondent is that the petitioners have nothing to do with the said property purchased by the proposed respondent. However, that is the aspect which will have to be considered on merits of the suit. Amendment could not have been rejected only on the ground of delay when otherwise a case was made out for granting the same. 4 Hence I pass the following order : i) Impugned order dated 27 th February 2009 is quashed and set aside and the application at Exh.122 is allowed. After the amendment is carried out, it will be open for the 1 st respondent to file additional written statement to the amended plaint. ii)Writ Petition is disposed of in above terms. JUDGE