mgn 1 app-310-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.310 OF 2011 IN CHAMBER SUMMONS NO.1569 OF 2003 IN SUIT NO.441 OF 2000 Wellworth Developers & Ors. ..Appellants. Versus Chanda C. Kadam & Ors. ..Respondents. Mr. Aspi Chinoy, Senior Advocate with Mr. Birendra Saraf i/b. M/s.Mahitura & Co., for the appellants. Mr. S.U. Kamdar, Senior Advocate with Ms. Pooja Patil, , Bhavik Manek, Pallavi Smirti and Kinshuk Kislaya i/b. M/s.Wadia Ghandy & Co., for respondent Nos.1 to 8. CORAM : MOHIT S. SHAH, C. J. AND GIRISH S. GODBOLE, J. Friday 10th June, 2011 PC: Appeal is admitted. Learned Counsel for the respondents waives notice on respondent Nos. 1 to 8 (original plaintiffs). As far as respondent Nos. 9 and 10 are concerned, they are defendant Nos. 5 and 6 and it is stated that they are proforma defendants a statement is made in the plaint that they are proforma defendants against whom no relief is claimed. Hence we have not considered it necessary to issue notice to respondent Nos. 9 and 10. 2. This appeal is directed against the order dated 15th April, 2011 of mgn 2 app-310-11.sxw the learned trial Judge of this Court allowing the Chamber Summons No. 1569 of 2003 in Suit No.441 of 2000. 3. The learned Counsel for the appellants submitted that by the amendment in question, the plaintiffs sought to introduce a new challenge to the supplemental deed of partnership beyond the period of limitation and, therefore, the amendment takes away the vested right of the defendants under the law of limitation. It is submitted that by allowing the Chamber Summons the learned trial Judge has even passed an order to the effect that the amendments shall be deemed to have been brought before the Court from the date of institution of the suit. 4. On the other hand Mr.Kamdar, the learned Counsel for the respondents -plaintiffs submitted that the amendment does not introduce new cause of action, the plaintiffs havge already challenged the partnership deed and, therefore, there is no question of introducing any new cause of action. It is further submitted that the learned Judge himself has observed in para.10 of the impugned order that the issue as regards limitation can be framed at the time of framing of the issues and, therefore, as amendment neither introduces a new cause of action nor is barred by limitation, the amendment cannot be refused. 5. Having heard the learned Counsel for the parties and having considered the decisions which were already cited before the learned trial Judge, we are of the view that the learned trial Judge committed no error in allowing the amendment. However, the following sentence in the impugned order requires to be deleted:- “In view of the facts and circumstances of the present case, I do not deem it appropriate to order that the amendments shall be mgn 3 app-310-11.sxw deemed to have been brought before the court from the date the application seeking amendments was filed.” Since the question whether the prayer introduced by the amendment was barred by limitation is a question yet to be decided as rightly observed by the learned trial Judge in para.10 of the impugned order, the aforesaid sentence is required to be deleted and it is clarified that the amendments were brought before the Court from the date the application seeking amendments was filed. 6. This, however, shall not come in the way of the plaintiffs contending that the amendments do not introduce any new cause of action and that the prayer inserted by the amendment was within the period of limitation. 7. All the observations made by the learned trial Judge in the impugned order shall be treated as tentative and made only for the purpose of disposal of the Chamber Summons. All contentions of all the parties are kept open. 8. Since the amendments granted by the learned trial Judge are carried out, the defendants shall file written statement by 8th July, 2011. Appeal stands disposed of accordingly. CHIEF JUSTICE GIRISH S. GODBOLE, J.