MP 1 WP5894_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5894 OF 2010 IN EXHIBIT NO. 33 IN R.A.D. SUIT NO. 883 OF 1999 Miss Nergish D. Bharucha since deceased through Mrs. Tehmi S. Khodaiji ... Petitioner Versus M/s. Shah Associates and another ... Respondents Mr. D. S. Sawant i/b. Mr. Rajesh Parab for Petitioner. Mr. Madhav Jamdar for Respondents. CORAM : B.R. GAVAI, J. MONDAY, MARCH 28, 2011 P. C. : Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner challenges the order dated 8th July 2010 vide which the application filed by the present petitioner for the amendment of the plaint, came to be rejected. The learned Trial Court has rejected the application on the ground that since the application for amendment was made after the commencement of trial and facts which are now sought to be pleaded were very much within the knowledge of the petitioner prior to the commencement of trial, the application was not tenable. 3. Mr. Jamadar, the learned Counsel for the respondent vehemently opposed the petition. He submits that the learned Trial MP 2 WP5894_10 Court, even on merits, has found the application to be not tenable. 4. It appears from the impugned order that the Judge has only read a paragraph of the judgment in the case of Vidyabai and others Vs. Padmalata and another reported in 2009 (2) SCC 409. Had the learned Judge read the judgement in entirety, the learned Judge himself could have found that the amended provisions of Code of Civil Procedure are not applicable to the suits filed prior to 1st July 2002. In that view of the matter the rejection of the application on the ground of applicability of the provisions is not sustainable in law. Even on merits, I find that the amendment deserves to be allowed. The original plaintiff is one Nergish D. Bharucha. After her death, the petitioners were brought on record as her legal heirs. The perusal of averments reveals that the petitioner only wants to bring on record the relationship of the present petitioner with the deceased original plaintiff and as to how the petitioners were residing in the suit property. In that view of the matter, I find that if the amendment is allowed, it will not change the nature of the suit. In any case, since the plaintiff is yet to be cross-examined, no prejudice would be caused to the respondent-defendant inasmuch as the defendants can amend the written statement or file the additional written statement to meet the averments which are sought to be incorporated by way of amendment and cross-examine the petitioners on the said aspects. 5. In that view of the matter, impugned order dated 8th July 2010 is quashed and set aside. The application filed by the present petitioner for the amendment of the plaint is allowed. The amendment to be carried out within a period of two weeks from today. However, it shall be subject to costs which are quantified at Rs, 10,000/-. The costs be deposited in the Trial Court within a period of four weeks from today. MP 3 WP5894_10 On depositing the costs, the respondent will be at liberty to withdraw the same. Since by earlier order, this Court had directed that the suit be decided within a particular period, the suit is now directed to be decided within a period of six weeks. (B.R. GAVAI, J)