1 wp6604.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 6604 of 2010 Mahadevi Dadasaheb Hange & anr. ..Petitioners v/s. Sheshrao Babasaheb Hange & ors. ..Respondents Mr. Rahul Kadam for the petitioner. Mr. P.P. Killedar for the respondents 1-4 and 6. CORAM:- B.R. GAVAI, J DATED :- JANUARY 14, 2011. P.C. Rule, Rule made returnable forthwith. 2. Heard by consent. By way of present Petition the Petitioners challenges the order dated 29th August, 2009 below Exhibit 193 and Exhibit 200 in Regular Civil Suit No. 380/2000 vide which the Applications filed by the present Petitioners-plaintiffs for amendment of the plaint came to be rejected and the order dated 29th March, 2010 vide which the Application filed by the present Petitioners for review thereof is rejected. 2 wp6604.10.sxw 3. The Petitioners had filed a suit for declaration that all the transactions entered by the defendant with regard to the suit property were illegal and for a declaration that plaintiffs were owners of the suit property. The Plaintiffs and defendants 1-4 are inter se related to each other. The suit was resisted by the defendants by filing the written-statement. During the pendency of the suit the Applications for amendment came to be filed by the plaintiffs for giving certain details regarding the properties mentioned in the plaint. The said Applications were rejected vide order dated 29th August, 2009. The Review against the said order was also rejected vide order dated 29th March, 2010. Being aggrieved thereof the present Petition. 4. Shri Kadam, the Learned Counsel appearing on behalf of the Petitioners submits that the Learned Trial Court has grossly erred in rejecting the Applications. He submitted that stage of trial was only for framing of the issues. The affidavit in lieu of examination-in-chief was yet to be filed. Apart from that it is submitted that suit is filed in the year 2000 and as such not governed by the amended provisions of CPC. It is, therefore, submitted that impugned orders are liable to be quashed and set aside. 3 wp6604.10.sxw 5. Shri Killedar, the Learned Counsel appearing on behalf of the Respondents 1-4 and 6, on the contrary submits that the Learned Trial Court has rightly rejected the Applications. It is submitted that if the Petitioners had exercised due diligence, the amendment which is sought to be incorporated now could have been very well brought on record at the stage of the filing of the suit. He submits that not only that but on earlier two occasions, the plaint has already been amended and even in those amendments the details which are sought to be given now are not given. He, therefore, submits that no interference is warranted in the present case. 6. By now it is well settled position of law that the Courts are required to take a liberal view in grant of amendment. However, the only rider insofar as suits which are filed after 1st July, 2002 are concerned is that if a matter is sought to be brought on record by an amendment, which by exercise of due diligence could have been brought on record prior to commencement of trial, such an amendment should not be allowed. As to what is commencement of trial has been described by the Apex Court as filing the affidavit in lieu of examination-in-chief. Reliance in this respect is placed on the Judgment of the Apex Court in the case of Vidyabhai v/s. 4 wp6604.10.sxw Padmalata reported in AIR 2009 SCC page 1433 and in the case of P.A. Jayalakshmi v/s. S. Saradha & ors. Reported in (2009) 14 SCC 525. 7. Undoubtedly, in the present case the affidavit in lieu of examination- in-chief is yet to be filed. Apart from that since the present suit is filed in the year 2000, it will not be governed by amended provisions of CPC but would be governed by unamended provisions of CPC. As such the test of exercise of due diligence would also not be applicable to the suit which is filed in the year 2000. 8. In that view of the matter, I find that the Learned Trial Court has grossly erred in rejecting the Applications for amendment. The Petition will, therefore, have to be allowed. The impugned orders dated 29th August, 2009 and 29th March, 2010 are quashed and set aside. The Applications of the present Petitioner for grant of amendment below Exhibit 193 and Exhibit 200 is allowed. The said amendment be carried out within a period of four weeks from today. However, it is to be noted that for no fault of the defendants 1-4 and 6 who are the contesting defendants, they were required to defend the said proceedings. 5 wp6604.10.sxw 9. In that view of the matter, the defendants would be required to be compensated. The Application of the present Petitioner for amendment is allowed subject to payment of cost which are quantified at Rs. 3000/- payable to the defendants 1-4 and 6. The cost be deposited in the trial Court within a period of four weeks from today. On deposit of the cost, the defendant nos. 1-4 and 6 would be at liberty to withdraw the same. 10. It is made clear that deposit of the cost is a pre-condition for allowing the present Petition. On failure to deposit the cost within a period aforesaid, the Petition shall stand automatically dismissed without further reference to the Court. 11. Needless to say that the defendants would be at liberty to file consequential additional written-statement. (B.R. GAVAI, J)