1 WP No.8379/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8379 of 2010 Shrarpunnissa Moiuddin Khan & ors. ... Petitioners versus Municipal Corporation of Gr.Mumbai ... Respondent ... Mr. H.T. Pawar for the petitioners. Mr.M.M. Malandkar for BMC respondent. CORAM : D.G. KARNIK, J DATED : 17th June 2011 P.C. 1. Rule returnable forthwith. Mr.Malandkar waives service for respondent. 2. Heard. 3. This petition is directed against the order dated 12 July 2010 rejecting the chamber summons taken out by the petitioners for amendment of the plaint. 4. Petitioners filed a suit against the respondent municipal corporation for an injunction restraining it from demolishing, 2 WP No.8379/10 removing and or pulling down any part of the suit premises, save and except by due process of law. During the pendency of the suit, petitioners took out a chamber summons for amendment of the plaint seeking to add paragraph no.10(a), as also prayer clauses (a-i) and (a-ii) in the plaint. The chamber summons was dismissed by the court on the ground that the effect of allowing the amendment would be to permit the petitioners to introduce a time barred cause in the plaint. Aggrieved petitioners are before this court. 5. Perusal of paragraph no.10(a) sought to be added by amendment shows that petitioners wanted to contend that they had not received the notice dated 10 July 2003 under the Maharashtra Slums Act and that they had also not received the order passed by respondent on 16 July 2003 as contended as contended by them in paragraph no.4(d) of the written statement. By amending the prayer clauses, the petitioners sought to add prayers (i) that the notice dated 10 July 2003 and the order dated 16 July 2003 were bad in law, illegal and not binding on them and (ii) for permanent injunction restraining the respondents from implementing the notice dated 10 July 2003 and the order dated 16 July 2003. In the reply to the chamber summons, the respondents denied that the petitioners had not received the notice dated 10 July 2003 and the order dated 16 July 2003 and contended that they had received the same. They further contended that the application for amendment was made after 5 years of the service of the notice and passing of the order and as such, the claim was barred by limitation. 3 WP No.8379/10 6. If the amendment is allowed, the court would have to decide whether the notice dated 10 July 2003 and the order dated 16 July 2003 was not served on the petitioner as contended by them. If finding is in the affirmative, then the suit having been filed within 3 years of the knowledge may not be barred by limitation. In that event, it cannot be said that petitioners were seeking to introduce a time barred claim as they had no knowledge of the notice and the order which was not served on them. In my view, therefore, it cannot be said that ex-facie the chamber summons was to bring within limitation a time barred claim. At best, the question whether the claim sought to be raised by amendment would be an arguable question. In Ragu Thilak D. John Vs. S. Rayappan & ors., (2001) 2 SCC 472, the Supreme Court has held that where it is arguable that reliefs sought by way of amendment would or would not be barred by limitation, the amendment should be allowed and the disputed matter be made the subject matter of the issue. 7. In the light of the decision of the Supreme Court in Regu Thilak’s case, the trial court ought to have allowed the amendment and thereafter could have framed appropriate issues regarding service of the impugned notice and order dated 10 July 2003 and 16 July 2003 respectively and the limitation. The trial court erred in rejecting the amendment by coming to the conclusion, without evidence that amendment, if allowed would introduce in the plaint a cause barred by limitation. 4 WP No.8379/10 8. For these reasons, petition succeeds. Impugned order is set aside. Petitioners shall be permitted by the court to carry out the amendment. Rule is made absolute but with no order as to costs. (D.G.KARNIK, J)