1 WP 4844/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4844 OF 2010 Preeti Vijay Sharma & Ors. .. Petitioners V/s Pushkahraj Bhabutmal Jain & Ors. .. Respondents Mr. J.S. Deo for the petitioners. Mr. G.S. Godbole i/b Mr. P.G. Chavan for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 13TH JULY 2010 P.C. : 1. Respondent nos.2 to 28 are not necessary parties to the writ petition. The respondent nos.2 to 28 be deleted. 2. Rule, returnable forthwith. Mr. Godbole waives service for the respondent no.1. By consent, taken up for hearing. 3. Heard learned counsel for the petitioners and Mr. Godbole for the respondent no.1. 4. By this petition, the petitioners challenge the order dated 16 2 WP 4844/10 April 2010 rejecting their application for amendment of the written statement. In a suit filed by the respondent no.1, the petitioners appeared and filed their written statement in the year 1999. After the plaintiff amended the plaint, additional written statement to the amended plaint was also filed by the petitioners. Thereafter the petitioners made an application for amendment of the written statement. That application was rejected by the Court by the order dated 16 April 2010 which is impugned in this writ petition. 5. Learned Judge appears to have influenced by the proviso added to Order 6 Rule 17 of the Code of Civil Procedure (for short “the Code”) inasmuch as the learned Judge has observed: “Under Order 6 Rule 17 C.P.C. It (Court) is to look due diligence of the party concerned who opts to file an application.” 6. Admittedly, the suit was filed prior to the amendment to Order 6 Rule 17 of the Code made in the year 2002. In State Bank of Hyderabad v. Town Municipal Council, (2007) 1 SCC 765, the Supreme Court has observed that proviso to Order 6 Rule 17 is not applicable in respect of suits filed prior to the amendment. Consequently, the petitioners were not required to prove that 3 WP 4844/10 despite due diligence they could not apply for amendment prior to the commencement of the trial. 7. Mr. Godbole for the respondent no.1 submitted that there was considerable delay in making the application for amendment. Not only that the application was made after several years of the filing of the written statement but was also made after the evidence of first witness of the plaintiff was recorded. Delay alone may not be a ground in every mater to reject the application for amendment. Amendments are allowed even at the appellate stage and occasionally even at the stage of second appeal. Where the delay has not resulted into crystalisation of any rights in favour of other party and the other party can be compensated by sufficient costs, the delay alone cannot be a ground for rejection of the application for amendment. In the present case, the petitioners have filed the suit for specific performance of the agreement for sale. The property belongs to a joint family. In view of the amendment to the Hindu Succession Act initially made by Maharashtra Legislature and then similar amendment made by the Central Legislature in the year 2005, the daughters in the family have been conferred the status of a co-parcener. It appears that the 4 WP 4844/10 amendment has become necessary on account of the amendment to the Hindu Succession Act by which the daughters claim to have acquired certain rights in the property. Consequently, the amendment application should have been allowed. 8. For these reasons, the impugned order is set aside and the application made by the petitioners for amendment of the written statement is allowed. The petitioners shall carry out the amendment in the written statement within 4 weeks of the knowledge of the receipt of the writ by the trial court. Needless to say that in view of the amendment, the respondent-plaintiff shall have a right to further examine himself. Taking into consideration the fact that the suit is old, the trial court would do well to expedite the hearing of the suit. 9. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)