1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6873 OF 2007 Bharat R. Lokhande & Ors. .. Petitioners versus Madhukar D. Lokhande (deceased) through legal heirs Ranjana M. Lokhande & Ors. .. Respondents Mr.Amogh Karandikar i/by M/s.Khandeparkar & Associates for the petitioners. CORAM : A.S.OKA, J. DATE : 5th May 2010. JUDGMENT: . On 15th October 2009, notice for final disposal was issued by this Court. The order dated 12th April 2010 records the statement of the learned counsel appearing for the petitioners that the notice has been duly served to the respondents. Hence, the petition is taken up for final hearing. 2. The petitioners are the original plaintiffs. The petitioners filed a suit for declaration and injunction. The respondents are the legal representatives of the defendant. The suit property is land bearing Gat No.363. 3. An application for amendment of the plaint was made by the petitioners. In the application it was contended that a survey officer was 2 appointed as the Court Commissioner. After the Court Commissioner submitted a report, it was realised by the petitioners that the respondents have encroached upon the suit property. It is stated in the application for amendment that during the pendency of the suit, the property bearing Gat No.364 held by the original defendant has been sold to a third party under a Sale Deed dated 12th April 2005. It is alleged that even the said third party has made encroachment along with the respondents. By an amendment a paragraph was sought to be incorporated alleging that encroachment has been made after July 2004 and the fact that the encroachment was noticed by the petitioners when the Court Commissioner submitted a report. A prayer is made for impleading the said third party as a party defendant and for incorporating a relief of removal of encroachment. The application was contested by the respondents. By the impugned order, the application has been rejected. The learned trial Judge observed that the report of the Court Commissioner was filed on record on 19th December 2005 and after examining the Commissioner on oath, the present application has been filed. The learned trial Judge held that proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) which was brought on the statute book with effect from 1st July 2002 will apply to the application for amendment. The learned Judge held that there was no explanation for making the application after commencement of trial and there was no averment made indicating the reasons as to why the amendment could not be applied for before commencement of trial. The third reason 3 given by the learned Judge is that there is no amendment proposed to the valuation clause of the plaint. Lastly, the learned Judge observed that the nature of the suit will undergo a change. 4. After having heard the learned counsel appearing for the petitioner, I find that the approach of the Court is erroneous. The suit was filed in the year 1998. Therefore, the proviso introduced by the amendment to the said Code with effect from 1st July 2002 will have no application. In a suit simplicitor for declaration and injunction, the contention raised by the petitioners is that from the report of the Court Commissioner filed on record on 19th December 2005, it was revealed that the respondents and the purchaser claiming through the respondents have made encroachment on the suit property. As constraints of proviso to Rule 17 of Order VI of the said Code were not applicable, it was the duty of the Court to consider the application for amendment liberally. On the allegation that during the pendency of the suit the respondents-defendants encroached upon the suit property, a prayer was made for incorporating relief of removal of encroachment. During the pendency of the suit ,the respondents allegedly sold their property to a third party and the allegation of the petitioners is that the respondents along with the said third party encroached upon the suit property. Therefore, a prayer was made for impleading the third party. The amendment was necessary for effectively adjudicating upon the dispute involved in the suit and same was necessary to avoid multiplicity of 4 proceedings. It is true that the prayer for removal of encroachment will have to be valued by the petitioners and if necessary, deficit Court fee will have to be paid by the petitioners. However, failure to seek amendment of the valuation clause in the plaint is no ground to reject prayer for amendment. After amendment is carried out the petitioners will have to pay deficit Court fee by making a proper valuation in accordance with the additional relief incorporated by amendment. The petitioners will have to pay deficit Court fees. 5. Hence, the petition is disposed of by passing following order: : O R D E R : (a) The impugned order dated 23rd April 2007 is quashed and set aside. (b) The application at Exhibit 94 is hereby allowed. (c) The petitioner shall carry out amendment to the plaint within a period of two weeks from the date on which writ of this order is received by the trial Court. (d) After amendment is carried out, the petitioners shall take steps for correcting the valuation of the suit and for payment of deficit Court fee on the basis of the prayer added for removal of encroachment. (e) If the petitioners fail to correct the valuation and pay deficit Court fee within a period of four months from the date on which amendment is carried out, it will be open for the trial Court to reject the 5 plaint by exercising powers under clause (c) of Rule 11 of Order VII of the Code of Civil Procedure, 1908. (f) It is made clear that after amendment is carried out, it will be open for the respondents to file additional written statement. (g) All contentions of the respondents as well as added defendant including the contention regarding bar of limitation are expressly kept open. (h) Writ petition is allowed in above terms. (A.S.OKA,J)