1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8527 OF 2009 Shaik Gulam Dastagir Mohammad Hussain. .. Petitioner Vs Tamiz B. Gulam Dastagir Shaikh. .. Respondent -- Shri G.R. Agarwal for the Petitioner. Shri M.M. Sathaye for the Respondent. -- CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 P.C: . Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondent. 2. Notice for final disposal has already been issued. The Petitioner is the original Plaintiff and the Respondent is the original Defendant. A suit for perpetual injunction has been filed by the Petitioner. An application for amendment of the plaint was made by the Petitioner at Exhibit-45 which has been rejected by the impugned order. 3. In the application for amendment of the plaint, a prayer is made for incorporating Paragraph 5A. By the proposed Paragraph 5A, the Petitioner wants to contend that he is in possession of the suit property as the legal representative of one Smt. Nababbi. It is further alleged that no 2 objection has been raised to the possession and ownership of the Petitioner by the Petitioner’s brothers and sisters. A reference is made to a suit filed by the brothers and sisters of the Petitioner to which the Respondent is a party. It is sought to be contended that in the said suit filed by brothers and sisters of the Petitioner, they have accepted the possession and ownership of the Petitioner. The application for amendment has been rejected mainly on the ground of bar of limitation. 4. The learned counsel appearing for the Petitioner submitted that the amendment ought to have been allowed as the same will not change the nature of the suit and there is no question of invoking bar of limitation. The learned counsel appearing for the Respondent submitted that the amendment is based on the averments made in the suit of the year 1992 filed by the brothers and sisters of the Petitioner. The Petitioner was all along aware the averments made in the said suit. He submitted that there is no explanation whatsoever as to why amendment is sought in the year 2009 when the said suit has been filed in the year 1992. He, therefore, submitted that the Trial Court was justified in rejecting the prayer. 5. I have given careful consideration to the submissions. The suit is of the year 1992 and, therefore, the same will not be governed by the constraints of Order VI Rule 17 of the Code of Civil Procedure, 1908 as amended from 1st July, 2002. In the plaint, the Petitioner is claiming to be 3 in possession of the suit property as the owner thereof. By the proposed amendment, all that the Petitioner wants to incorporate is that the possession of the Petitioner and his ownership rights have been accepted by his brothers and sisters. The amendment does not change the nature of the suit and no attempt is made to introduce any new case. Such amendment ought to have been liberally allowed. The Respondent could have been compensated by ordering payment of costs. The Trial Court could not have rejected the application for amendment on the basis of the bar of limitation. 6. Hence, the Petition must succeed and I pass the following order. (a) The impugned order dated 23rd July, 2009 is quashed and set aside and the Application at Exhibit-45 is allowed. (b) The Petitioner is directed to carry out amendment within a period of two weeks from the date on which writ of this order is received by the Trial Court. (c) It will be open for the Respondent to file additional Written Statement to the amended Plaint within a period of 4 weeks from the date on which the amended copy of the Plaint is served. 4 (d) The Petitioner shall pay costs to the Respondent which is quantified at Rs.5,000/- to be deposited with the Trial Court within a period of six weeks from today. (e) Hearing of the suit is expedited and the Trial Court is expected to conclude the hearing of the suit on or before 31st August, 2010. (A.S.OKA, J) ash