1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.538 OF 2009 Navinchandra N.Majithia & Ors. .. Petitioners. Vs. M/s.Universal Dyeing & Printing Works & Anr. .. Respondents. Mr.P.S.Dani for the petitioners. Mr.M.P.Vashi for respondent no.1. Ms.P.S.Cardozo A.G.P. for the State. Coram: D.B. BHOSALE, J. Dated : 12TH AUGUST, 2009 P.C. . Heard learned counsel for the parties. 2. Rule. Rule returnable forthwith. 3. Mr.Vashi, learned counsel waives service for respondent no. 1 and Ms.Cardozo, learned A.G.P. waives service for the State. The writ petition is heard finally with the consent of the parties. 4. By this petition the petitioners have impugned the order dated 11.9.2008 passed by the Small Causes Court, dismissing the revision application filed by the petitioners holding that it was not maintainable. The revision was directed against the judgment and order dated 1.4.2008 passed in interim notice No.2109 of 2007 in R.A.E. & R. Suit No.393/1166 of 1981. The interim notice was taken out by the petitioners under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the plaint. The 2 order dismissing the revision as not maintainable is ex-facie wrong and illegal and deserves to be set aside. Order accordingly. 5. The counsel for the parties, however, instead of seeking remand of the matter to the court below for hearing the revision afresh, jointly requested to hear this petition against the basic order dated 1.4.2008 passed by the learned Single Judge of the Small Causes Court dismissing the interim notice taken out by the petitioners for amendment. Hence I have heard the learned counsel for the parties and perused the order dated 1.4.2008. The interim notice has been rejected holding that in the present case, as mandated in the proviso to Rule 17, Order 6 of the Code of Civil Procedure, it cannot be stated that the matter, which plaintiffs seek to raise/introduce by way of an amendment, could not have raised inspite of due diligence. It is thus clear that the application was rejected solely on the basis of the proviso to Rule 17, Order 6 of the Code of Civil Procedure, which was inserted by the Code of Civil Procedure (Amendment) Act, 2002 and was brought into force w.e.f. 1.7.2002. In other words, the learned Judge rejected the prayer for amendment relying upon the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure. 6. In the present case, admittedly, the suit was filed in 1981 i.e. long before the Code of Civil Procedure (Amendment) 2002 was brought into force. In view thereof Mr.Dani, learned counsel 3 for the petitioners submitted that the amended provisions of Order 6 Rule 17 are not attracted and that the learned Judge has committed grave error of law in rejecting the prayer for amendment. In support of his contention he placed reliance upon the judgment of this court in Mohan s/o Maluram Agrawal v. Kaladevi wd/o Sawarmal Agrawal and Anr. 2007(2) Mh.L.J. The relevant paragraph of the judgment reads thus: “7. Insofar as applicability of the amended provisions of Order 6, Rule 17 of Code of Civil Procedure is concerned, it will be necessary to refer Section 16 of The Code of Civil Procedure (Amendment) Act, 2002. The relevant provision reads thus: 16. Repeal and Saving :-- (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897) -- ....(b) the provisions of rules 5, 15, 17 and 18 of Chapter VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section of this Act. It could thus be seen that the legislative intent 4 regarding the applicability of amended provisions in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999, is very clear. Section 16(2)(b) of the Amendment Act, 2002 provides that the provisions of section 7 shall not apply to in respect of pleading filed before the commencement of section 16 of the Amendment Act, 2002. The amendment to the provisions of Order 6, Rule 17 of the Code of Civil Procedure has been made by way of section 7 of Amendment Act, 2002. In that view of the matter, I am unable to accept the contention raised by the learned counsel for the respondents. The amended provisions of Order 6, Rule 17 are to be applicable to the pleadings which are not filed prior to commencement of the Amendment Act, 2002. Admittedly, the plaint is filed prior to 1.7.2002 i.e. The date on which Amendment Act came into effect, as such the amended provisions of Order 6, Rule 17 would not be applicable to the amendment of plaint in question. “ (emphasis supplied) The position of law, as stated in the aforesaid paragraph, is not disputed by the learned counsel for the respondent. In view thereof the judgment and order dated 1.4.2008, impugned in the present petition, must be set aside. Order accordingly. The petitioners-plaintiffs are allowed to carry out amendment within a period of four weeks from today and shall serve a copy of the 5 amended plaint on the defendants immediately thereafter. The trial Court shall proceed to hear the suit after four weeks from today and shall decide the same on merits in accordance with law. Since the suit is of 1981 the trial Court shall endeavour to decide the same expeditiously. The parties are directed to co-operate for early disposal of the suit. With these observations the writ petition is disposed of. (D. B. Bhosale, J.)