1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8683 OF 2009 1 Shrirang Rama Narale 2 Smt.Malanbai Rambhau Limgire (since deceased through L.Rs.) 2a) Tarachand Ramchandra Nimgire 2b) Dadasaheb Ramchandra Nimgire 2c)Mrs.Sakharabai Dagdu Khandekar ...Petitioners vs. 1 Dhondiram Rama Narale 2 Baliram Rama Narale 3 Vishwanath Rama Narale 4 Manik Rama Narale 5 Kashinath Rama Narale 6 Mrs.Phgulabai Rama Narale 7 Smt.Nilavati Tukaram Kachare 8 Mrs.Shalan Hari Limgire 9 Smt.Shakuntala Dattu Shinde 10Ratilal Jagannath Sodmishe 11Madhukar Ramchandra Limgire 12Mohan Ramchandra Limgire 13 The Branch Manager, Maharashtra State Agricultural Land Development Bank Ltd.Solapur ...Respondents Mr.Uday B. Nighot for the petitioners Mr.B.R.Desai a/w Mr.Rupesh Bobade for the 1st respondent CORAM :A.S.OKA,J. DATE : FEBRUARY 5, 2010 JUDGMENT : 1 Heard the learned counsel for the parties. The parties were put to notice that the Petition will be taken up for final disposal at admission stage. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the Order dated 10th June 2009 passed by the trial Court by which the application for amendment of the plaint was rejected by the trial Court. 2 2 I have heard the submissions of the learned counsel for the petitioners and the learned counsel for the 1st respondent. Rest of the respondents have been duly served with the notice. The suit filed by the petitioners is for partition and separate possession of the suit property more particularly described in paragraph 1 of the plaint. The petitioners are claiming total 1/6th undivided share in the suit property. Consequential reliefs were claimed in the suit. The application for amendment of the plaint was filed by the petitioners after commencement of recording of evidence of the 1st petitioner. It must be noted here that in paragraph 4 of the plaint, it is asserted that the 1st to 5th respondents started claiming exclusive ownership in respect of the suit properties and in particular the property bearing Gat no.154/3 on the basis of a mutation entry no.2048. As the first petitioner learnt that the 1st respondent was trying to alienate the property bearing Gat No. 154/3, a notice was issued dated 30th March 2002 by the 1st petitioner for claiming a right of pre-emption. The notice was replied to by the 1st respondent contending that he was not intending to sell the property. It is stated in paragraph 4 of the plaint that on 3rd April 2002, the 1st respondent entered into a sale transaction of the said property in favour of the 11th and 12th respondents. It is set out that the 1st petitioner and the 2nd to 5th respondents have filed a civil suit being suit no.94 of 2002 against the 1st respondent and 12th respondent and the said civil suit was pending. It appears that subsequently the said suit was dismissed for non-prosecution. The said suit was dismissed on 13th April 2007. 3 Amendment sought by the application at exh.72 is essentially for challenging the alienation made by the 3 1st respondent and for claiming a right of pre-emption. Therefore, prayer is made for incorporating the additional averments at the end of paragraph 4 regarding existence of right of pre-emtion in favour of the 1st petitioner. A prayer is sought to be added for asserting the right of pre-emption. Amendment is sought to amend clause regarding the valuation and court fees in the plaint. 4 The learned trial Judge rejected the application by the impugned order. The trial Court observed that the 1st petitioner can take appropriate steps as regards the suit which was dismissed for non prosecution. The learned trial Judge also dealt with the submission made regarding bar of limitation. 5 The learned counsel for the petitioners submitted that the reasons were recorded in the application for filing the same after commencement of the trial. His submission is that by keeping all defences open, the amendment ought to have been allowed especially when the 1st petitioner had already filed a suit claiming right of pre-emption. 6 The learned counsel for the 1st respondent submitted the trial Court has rightly rejected the application as the trial Court has no jurisdiction to permit amendment to be carried out after the commencement of the trial. He placed reliance on the decision of this Court in case of Chhabubai Haribhau Badakh vs. S.H.Khatod and Sons and another [2009 (6) Mh.L.J.670]. He submitted that the remedies of the 1st petitioner as regards the alleged right of pre-emption are open and he can even file a fresh suit within the law of limitation. He submitted that a fresh cause of action cannot be 4 introduced which is barred by limitation. 7 I have carefully considered the submissions. Even the learned counsel for the 1st respondent did not dispute that as the earlier suit no.94 of 2002 was dismissed for non prosecution, the 1st petitioner could have filed a fresh suit for the same relief on the same cause of action. Perusal of the plaint in the present suit shows that in paragraph 4, right of pre-emption is already asserted by the 1st petitioner and there is a reference to the aforesaid suit filed by the 1st petitioner and the 2nd to 5th respondent. The purchaser of the suit property through the 1st respondent is already impleaded as a party. 8 As far as the applicability of proviso to rule 17 of Order VI. is concerned, 10th April 2006 is the date of settlement of issues which will have to be taken as the date of commencement of the hearing. The suit No.94 of 2002 has been dismissed thereafter on 13th April 2007. As the said suit was pending till 13th April 2007, there was no occasion for the 1st petitioner to claim relief on the basis of the alleged right of pre-emption. Therefore, before 13th April 2007 the amendment which is sought to be made could not have been applied for. That is the precise reason set out in the application. It is obvious that before commencement of the trial i.e. 10th April 2006, the amendment could not have been sought by the petitioner. 9 Instead of filing a fresh suit which was admittedly maintainable, to avoid multiplicity of the proceedings, the 1st petitioner has chosen to apply for amendment of the plaint. As stated earlier, the purchaser claiming through the 1st respondent is already a party to the 5 present suit. Even if amendment is permitted, the issue of bar of limitation will always remain open. Even the contention regarding mis-joinder of causes of action will always remain open. In my view, the amendment ought to have been allowed as amendment could not have been applied for before the commencement of the trial. It is true that to a certain extent, there is a delay on the part of the petitioners. The respondents could have been compensated for the said delay by awarding costs. Hence, the petition must succeed. 10 Hence, I pass the following order : i) Impugned Judgment and Order dated 10th June 2009 is quashed and set aside. ii)The application at exh.72 is hereby allowed subject to the petitioners paying costs of Rs.7500/- to the 1st respondent. The payment of costs will be a condition precedent. The costs to be deposited with the trial Court before expiry of a period of six weeks from today. iii)Amendment to be carried out within a period of two weeks from the date on which the amount of costs is paid or deposited. iv)It will be open for the defendants to file additional written statement within a period of 8 weeks from the date on which a copy of the amended plaint is served to them. v) All contentions including the contention regarding bar of limitation are always kept open. vi)Writ Petition is disposed of in above terms. JUDGE