ssm 1 6.wp.6008.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION (ST) NO. 6885 OF 2011 IN WRIT PETITION NO. 6008 OF 2010 WITH WRIT PETITION NO. 6008 OF 2010 Arjun Vithal Abitkar and others ....Petitioners Versus Vishwas Vishnu Abitkar and others ....Respondents ___________ Shri. P. R. Arjunwadkar for the Petitioners. Mr. S. V. Sadavarte for the Respondent Nos. 1 to 9. Mr. Chetan G. Patil for the Respondent No. 10. CORAM: B. R. GAVAI, J. DATED : 15 TH MARCH, 2011 P.C.: This is an application for brining on record the legal heirs of the Respondent No. 1. 2. Mr. Sadavarte, learned Counsel appeared on behalf of the proposed legal heirs has no objection for allowing the Application. The application, therefore stands allowed. Necessary steps to be taken within a period of one week from today. 3. By consent, Petition is taken for hearing. ssm 2 6.wp.6008.10 4. By way of present Petition, Petitioners challenge the order dated 13 th July, 2010, vide which the application filed by the present Petitioners for amendment of the plaint, came to be rejected. 5. The Petitioner has filed Regular Civil Suit No. 63 of 2009 for declaration and injunction against the Respondent Nos. 1 to 9 and 10. During the pendency of the proceedings, admittedly an order of injunction is granted in favour of the Plaintiffs and against the Respondent Nos. 1 to 9, which has been confirmed by this Court. During the pendency of the suit contending that the Respondent Nos. 1 to 9 have breached an order of injunction and further that the sale deed executed in favour of Defendant No. 10 in 1993 was not binding, an application for amendment came to be filed. The said application was resisted. The learned Trial Court observing that since the issues are framed and the trial has commenced, rejected the application. Being aggrieved by this, the present Petition. ssm 3 6.wp.6008.10 6. Shri. Arjunwadkar , learned Counsel appearing on behalf of the Petitioners submit that the learned Trial Court erred in rejecting the application on the ground that the trial has commenced. He submits that from the order of the learned Trial Court itself, it is revealed that only issues are framed. Therefore, he submits that the learned Trial Court ought to have been allowed the application for amendment in as much as the Petitioners seek to bring on record subsequent events. 7. Mr. Sadavarte, learned Counsel for the Respondent Nos. 1 to 9, vehemently, opposes the Petition and submits that the Trial Court has rightly rejected the application for amendment. He, also, submits that the amendment is of 6 pages and therefore the learned Trial Court has rightly rejected the application. 8. Mr. Patil, learned Counsel on behalf of the Respondent No. 10 submits that by way of amendment, the Petitioners/Plaintiffs are seeking to bring on record cause of action which is admittedly beyond limitation and therefore, the same has ssm 4 6.wp.6008.10 been rightly rejected by the learned Trial Court. 9. It is a settled principle of law that the courts have to take liberal view in grant amendment. Only rider is in view of Order VI, Rule 17 which is brought on the statute book by the 2002 Amendment to the Code of Civil Procedure, 1908, and which requires that after the commencement of Trial, amendment should not be allowed if exercise with due deligene a party could have brought the said matter on record prior to commencement of trial. In the case of Vidyabhai v/s. Padmalata reported in AIR 2009 SCC 1433 , the Apex Court has held that the filing of affidavit in examination in lieu of examination in chief would amount the commencement of trial. Admittedly, affidavit in lieu of examination in chief, is yet to be filed. The learned Trial Court has therefore erred in holding that trial has commenced. 10. In sofar as the contention of Mr. Sadavarte is concerned, the number of pages would not be relevant to consider as to whether the amendment is to be allowed or not as long as ssm 5 6.wp.6008.10 amendment is necessary for complete adjudication of case would be allowed. I find no substance in the said submission. In sofar as the submission of Mr. Patil regarding the claim being barred by limitation is concerned, it is a settled principle of law that the Court cannot go into the merits of the matter at the stage of consideration of application for amendment. In any event, the Respondent No. 10 would always be at liberty to file consequential written statement and take a ground in that regard. In sofar as the prejudice caused to the Respondent is concerned, the same can be compensated by saddling costs. 11. In that view of matter, this Petition is allowed. Rule is made absolute in terms of prayer clause (b). However, this shall be subject to costs which are quantified at Rs.3,000/- payable to Respondent Nos. 1 to 9 on one part and Rs. 3,000/- to Respondent No. 10 on one part. The Petitioner shall deposit the costs of Rs.6,000/- in the Trial Court within a period of four weeks from today. On deposit of the same, the Respondent No. 1 to 10 will be ssm 6 6.wp.6008.10 at liberty to withdraw the same. The condition of deposit of costs is a pre-condition for allowing the Petition. If costs are not deposited within the stipulated period the petition shall stand dismissed automatically. 12. Since, this court on earlier occasion has already directed the Trial to be concluded by October 2010 and since for unavoidable circumstances, this could not be done during that period, the learned Trial Court is now directed to conclude the trial in any case on or prior to 31st August, 2011. It is made clear that no unnecessary adjournments should be granted to the Plaintiffs in as much as order of injunction is already passed in their favour. The parties to act on an authenticated copy of this order. (B. R. GAVAI, J)