1 WP no.8618/09 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.8618 of 2009 Mr.Chandkhan Yusufkhan Mev ... Petitioner versus Mr.Abdul Gafar D. ... Respondent ... Mr.Bharat Khanna for the petitioner. Mr.S.S.Patil for respondent. CORAM : D.G. KARNIK, J. DATED : 26th July 2010 P.C. 1. Rule, returnable forthwith. 2. Mr.Patil waives service for the respondent. Heard forthwith. 3. By this petition, petitioner challenges the order dated 22 June 2009 passed by learned Civil Judge, Jr.Division, Kalyan rejecting the petitioner’s (original plaintiff’s) application for amendment of the plaint. By the amendment, the plaintiff sought to add the name of his wife as a co-plaintiff on the ground that she was a co-owner of the property. The application was rejected on the ground that the petitioner had not shown due diligence at the time of filing of the suit. Though 2 WP no.8618/09 not specifically mentioned, learned Judge appears to have been influenced by the fact that the application for amendment was made after the commencement of the trial. This is because the learned Judge has rejected on the ground of want of due diligence on the part of the plaintiff. The Supreme Court has held that the provisions of Order 6 Rule 17 of the Code of Civil Procedure would not apply to suits which had been filed prior to the date on which Order 6 Rule 17 was amended. The suit in the instant case was filed prior to the amendment. As such, proviso to Order 6 Rule 17 does not apply to the present case. 4. In respect of suits instituted prior to the amendment, delay alone cannot be a ground for rejection of the amendment, the present amendment does not alter the nature of the suit but seeks to bring on record all the owners. Consequently, amendment ought to have been allowed. For these reasons, impugned order is set aside and the plaintiff’s application for amendment is allowed. 5. Amendment shall be carried out within two weeks of the receipt of the writ by the trial court. Rule is made absolute. (D.G. KARNIK,J.)