- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 188 OF 2011. Shri Milton Coutinho, Aged 60 years, married, r/o. H. No. 165, Sirvodem, Navelim, Salcete, Goa. …....... Petitioner. Versus 1 Mrs. Antonio Minino Jose D'Silva, ( since deceased) major in age, married, r/o. H. No. 239, Sirvodem, Navelim, Salcete, Goa. 1(a) Mrs. Edbiscuia da Silva ( widow of defendant no.1) r/o. House No. 81, ( old House No. 239) Sirvodem, Navelim, Salcete-Goa. 1(b) Mrs. Ramona Ziad Jane Da Dilva, (daughter and her husband) 1(c) Mr. Eliton Mathias D'Souza, Both r/o. H. No. A-2, Vaz Apartment, near Tolsanzor, Aquem- Alto, Margao-Goa. - 2 - 1(d) Ralston Agustine D'Silva (Son) 1(e) Miss Raylene Edith D'Silva, (daughter), Both r/o. House No.7/141, Sirvodem, Navelim, Salcete, Goa. 2 Shri Romalino Mergulhao Carvalho, Major in age, married, r/o. Sinquetim, Navelim, Salcete, Goa. 3 Mrs. Irene Mergulhao Carvalho, Major in age, married, r/o. H. No. 283, Ward 6 Sinquetim, Navelim, Salcete, Goa. 4 Mrs. Crescencia Mergulhao Carvalho, 83 years, married, r/o. H. No. 144, Sinquetim, Navelim, Salcete, Goa. 5 Mr. Walter M. Carvalho, 53 years, married and his wife; 6 Mrs. Jovita M. Carvalho, 50 years, married both residents of H. No. 144, Sinquetim, Navelim, Salcete, Goa. …....... Respondents. - 3 - Mr. C. A. Coutinho, Advocate for the petitioner. Mr. J. Godinho, Advocate for the respondent nos. 2 to 6. None for respondent nos.1(a) to 1(e). CORAM :- A. P. LAVANDE, J. DATE : 30 th June, 2011. ORAL JUDGMENT : Heard Mr. C. A. Coutinho, learned Advocate for the petitioner and Mr. J. Godinho, learned Advocate for the respondent nos. 2 to 6. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner who is plaintiff in Regular Civil Suit No.96/1994/E pending before Civil Judge, Junior Division, Margao takes exception to the order dated 17.3.2011 by which application for amendment dated 11.3.2011 filed by the plaintiff has been dismissed. - 4 - 4. Perusal of the impugned order discloses that the application for amendment has been primarily rejected on the ground that application for amendment has been filed after the trial has begun and as such in view of proviso to Order 6 Rule 17 of C.P.C., the plaintiff was not entitled to seek amendment of the plaint. 5. Mr. Coutinho, learned counsel appearing for the petitioner placing reliance upon the Judgment of the Apex Court in the case of State Bank of India, Hyderabad Vs. Town Municipal Council, (2007) 1 SCC 765 submitted that since the suit was filed in the year 1994 the amendment to proviso to Order 6 Rule 17 which was introduced by way of amendment w.e.f. 1.7.2002 is not attracted. Learned Counsel therefore submitted that matter may be remanded to the trial Court to decide the application afresh on its own merits. Mr. J. Godinho, learned Advocate for the respondent nos. 2 to 6 has no objection if the matter is remanded for deciding the application for amendment afresh on its own merit. 6. In view of the Judgment of the Apex Court in the case - 5 - of State Bank of India, Hyderabad (supra) it is evident that the proviso to Order 6 Rule 17 is not attracted to the suit filed by the plaintiff in the year 1994. Therefore submission made by learned Advocate Mr. Coutinho and rightly conceded by Mr. Godinho, deserves to be accepted. 7. In the result therefore, impugned order dated 17.3.2011 is quashed and set aside. Trial Court to decide the application dated 11.3.2011 filed by the plaintiff seeking amendment to the plaint on its own merits in accordance with law, in the light of the observation made herein above. 8. Rule is made absolute in aforesaid terms with no order as to costs. A. P. LAVANDE, J. vn*