1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.295 OF 2009 IN CHAMBER SUMMONS NO.715 OF 2009 IN SUIT NO.1154 OF 1974 Jimmy R. Nazir and others ...Appellants v/s The Trustees of Port of Bombay ...Respondents Mr D.D. Madon, Sr. Counsel with Mr A. Delhiwala i/b Mr Ramchandra Yadav for Appellants. Mr U.J. Makhija i/b M/s Mulla and Mulla and Craigie Blount and Caroe for Respondents. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 16TH SEPTEMBER 2009. 2 P.C. :- 1] By this appeal, the appellants  defendants in the civil suit, challenge the order dated 9th June 2009 passed by the learned Single Judge of this Court allowing amendment in the plaint. The principal amendment is that the prayer clause (c) in the plaint is to be deleted and in its place, a new prayer clause (c) is to be substituted. The original prayer clause (c) in the plaint reads as under :- (c) that the defendants jointly and severally be ordered and decreed to pay to the plaintiffs further compensation for the use and occupation of the said premises at the rate of Rs.7566.43 p.m. From the date of the suit till 31st July 1981 and if vacant possession is not delivered to the plaintiffs by 31st July 1981 then at the rate of Rs.9433.18 p.m. From 1st August 1981 till vacant possession is given to the 3 plaintiffs together with way leave charges at the rate of Rs.11 p.m.; By the original prayer clause (c), the plaintiffs were claiming occupation charges at the rate of Rs.7566.43 p.m., from the date of termination of the tenancy till the date of handing over possession. Prayer clause (c), which is substituted by amendment, reads as under :- (c) that the defendants be ordered and decreed to pay to the plaintiffs mesne profits in respect of the suit premises under Order XX Rule 12 of the Code of Civil Procedure from the date of the suit until defendants handover quiet, vacant and peaceful possession of the said premises to the plaintiffs; Now, by the amended prayer clause, the plaintiffs are seeking inquiry in the mesne profits under Order XX Rule 12 of the C.P.C . Though the 4 amendment was opposed before the leaned Single Judge, relying on the judgment of the Supreme Court in the case of Vidyabai and others v/s Padmalatha and anr., reported in 2009(1) SCC 302, the learned counsel appearing for appellants stated before us that the law laid down by the Supreme Court in that judgment will not apply to this case. He however submitted that the prayer clause incorporated by way of amendment is barred by limitation and therefore, the learned Single Judge should not have allowed that amendment. He also submitted that the amendment should not have been allowed because there is inordinate delay in introducing the amendment. He submits that the amendment has been introduced after cross-examination of the witness of the plaintiffs was over when the plaintiffs found that they are not in a position to prove, that they are entitled to occupation charges at the rate mentioned in the prayer clause. In our opinion, even if it is the objection of the appellants that the amendment is barred by limitation as has been held by the Supreme Court, the amendment in the plaint 5 can be allowed leaving the question of limitation open. Therefore, while filing reply to the amended plaint, the appellants will be able to raise the plea that the relief sought by amendment is barred by limitation. It is to be seen here that by amended prayer clause (c), the plaintiffs are seeking inquiry into mesne profits. As and when that inquiry takes place, the appellants will be free to point out to the Court that initially specific amount of compensation was claimed and therefore, the mesne profits should not exceed that amount in any case. So far as the objection that the amendment should not have been allowed because of delay and reliance placed on the judgment of the Supreme Court in the case of Shiv Gopal Sah v/s Sita Ram Saraugi and others, reported in AIR 2007 SC 1478 is concerned, in our opinion, merely because there is delay in making application for amendment, the amendment cannot be rejected if there is reasonable explanation given by the plaintiffs. The explanation given for the delay is that there were talks for negotiations going on between the parties 6 and therefore, application for amendment was not made. In reply, the defendants do not deny that the negotiations were going on between the parties from January 2008. The objection raised in the reply is that the amendment should have been applied for immediately after 1974 when the suit was filed cannot be accepted. In our opinion, as there is no explanation given for delay in making the application for amendment, considering the law laid down by the Supreme Court in relation to the manner in which the Court has to exercise its power to allow amendment in the pleadings, we will not be justified in interfering with the order of the learned Single Judge. We also feel that the order allowing amendment is an interlocutory order and if ultimately, the defendants feel aggrieved by the decree passed in the suit, they can challenge even the validity of the order permitting amendment while challenging the decree before the Appellate Court. We clarify that as one of the grounds on which amendment was opposed was limitation, the order allowing amendment will be subject to the right of 7 the defendants to plead that the claim introduced by amendment is bared by the law of limitation. Appeal is therefore rejected. Notice of motion No.2588 of 2009 is disposed off. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G. KETKAR )