IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3909 OF 1997 Smt. Maniben Ambalal Limbachia ) Age 57, residing at Rakhe Ali, ) Vasai (Thane) 401 201. ).. Petitioner Vs. 1. Smt.Yamunabai Ganpat Samant ) Age 78, residing at Shraddhnand ) Mahilashram, Koliwada, Vasai (Thane)) 401 201. ) 2. Hemant Tanaji Samant ) Age 46, residing at Bhaskar Ali, ) Vasai (Thane) 401 201. ) .. Respondents Mr. G.V. Magarsheth for the Petitioner. Mr. N.B. Shah for Respondent No.2. CORAM : A.S. OKA, J. DATE : 30 TH SEPTEMBER, 2009. JUDGMENT. : 1. Heard the learned Counsel appearing for the petitioner and learned Counsel appearing for the second respondent. The petitioner is the original plaintiff. The second respondent is the original second defendant. The first respondent is the original first defendant. By order dated 25th November, 2005 passed in Civil Application No.2216 of 2004, the petitioner was permitted to delete the name of the first respondent on the ground that the said respondent has died and does not have any legal representatives. 2. The petitioner filed a suit for specific performance of the alleged agreement for sale dated 5th October, 1982 executed by the first respondent in her favour. In the suit it is asserted that the first respondent without canceling the agreement for sale dated 5th October, 1982 sold the suit property to the second respondent. The prayer in the suit is for a decree directing the respondents to execute a conveyance in favour of the petitioner and for various other reliefs. A written statement was filed by the second respondent. In the said written statement which was filed on 12th February, 1993 it was contended that the second respondent had instituted Regular Civil Suit No.41 of 1985 against the first respondent and thereafter first respondent has executed a sale deed in respect of the suit property in favour of the second respondent and that the second respondent has been placed in possession. It was contended that the second respondent was not aware of the suit agreement. An application for amendment of the plaint at Exhibit "27" was made by the petitioner on 13th June, 1996. By the said application, the petitioner was seeking to add a paragraph containing averments that the decree passed in Regular Civil Suit No.41 of 1985 was illegal and the sale deed executed by the first respondent in favour of the second respondent on the basis of the said decree was illegal. By the said application, two additional prayers were sought to be added. The first prayer was for declaration that the decree passed in Regular Civil Suit No.41 of 1985 was liable to be set aside and the same is not binding on the petitioner. The second prayer sought to be added was the sale deed executed on the basis of the said decree in favour of the second respondent be set aside and it be declared that the sale deed is not binding on the petitioner. The said application has been rejected by the impugned order by the trial court by observing that the application has been belatedly filed and, if such application is allowed, it will take away the rights accrued to the respondents. 3. The learned Counsel appearing for the petitioner submitted that the amendment could not have been denied on the ground of delay and bar of limitation. Relying upon a decision of the Apex Court in the case of Usha Devi vs. Rijwan Ahmad and Ors. (2008 5 Mh.L.J. 82), it is submitted that the Court could not have gone into the merits of the proposed amendment. The learned Counsel appearing for the second respondent submitted that though the petitioner was fully aware right from February, 1993 about the decree and sale deed in favour of the second respondent, the application for amendment was belatedly filed on 13th June, 1996. He placed reliance on the decision of the Apex Court in the case of Radhika Devi vs. Bajrangi Singh & Ors. (AIR 1996 SC 2358). It is submitted that considering the gross delay and considering the conduct of the petitioner, the trial court has passed a discretionary order declining permission to amend the plaint. It is submitted that such order cannot be interfered with in writ jurisdiction under Article 227 of the Constitution of India. 4. I have carefully considered the submissions. The suit is for specific performance of the agreement for sale dated 5th October, 1982. In the plaint, as originally filed, there is an averment that the first respondent has sold the suit property to the second respondent by executing a sale deed. It is alleged that the second respondent has entered into the said transaction with the full knowledge of the suit agreement for sale. In the written statement, the second respondent relied upon a decree passed in Regular Civil Suit No.41 of 1985 filed by him against the first respondent and contended that on the basis of the decree passed in the said suit, the first respondent has conveyed the suit property in his favour. The second respondent is thus claiming through the first respondent. The second respondent is claiming under the first respondent by a title arising subsequently to the suit agreement which is sought to be enforced by the petitioner by filing the present suit. In view of Section 19(b) of the Specific Relief Act, 1963, the petitioner is entitled to a relief of specific performance of contract even against the second respondent unless it is proved that the second respondent has acquired the suit property for consideration in good faith without notice of the suit agreement. The second respondent was already impleaded as a party defendant to the suit and in fact a decree for specific performance is claimed against both the respondents. Even without praying for any declaration or relief as regards the decree passed in Regular Civil Suit No.41 of 1985 and the sale deed executed on the basis of the said decree by the first respondent in favour of the second respondent, the petitioner could have prayed for decree against the second respondent in view of Section 19(b) of the said Act of 1963. By the proposed amendment, all that the petitioner wants to contend is that the decree in the said suit and the conveyance executed on the basis of the said decree are not binding on him. As stated earlier, even without incorporating the additional prayers which are sought to be incorporated, the petitioner could have prayed for decree for specific performance against the second respondent. 5. In the circumstances, there was no reason for the trial court to deny the prayer for amendment. The suit is of the year 1992 and, therefore, the same will not governed by the constraints of the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 brought into force on 1st July, 2002. It is well settled law that the court has to be liberal while dealing with the applications for amendment of pleadings. Notwithstanding the grant of amendment, all issues such as bar of limitation always remain open which can be agitated by the concerned defendant by filing additional written statement. 6. Hence, the impugned order deserves to be set aside and the Petition must succeed. 7. Hence, I pass following order : "O R D E R" (i). The impugned order dated 17th April, 1997 is quashed and set aside and application at Exhibit 27 made by the petitioner is hereby allowed. (ii). After amendment is carried out, it will be open for the second respondent to file additional written statement dealing with the amended plaint. (iii). All contentions of the second respondent including the contention raised on plea of bar of limitation are expressly kept open. (iv). Rule is made absolute in above terms. A.S. OKA, J.