ORAL JUDGMENT :- Rule. Rule made returnable forthwith.

Shri D. L. Dharmadhikari, the learned Counsel waives notice for Respondents. By consent, heard finally.

2. By way of present petition, the petitioner challenges the impugned order dated 19th September, 2005 in Regular Civil Suit No. 131/2001 below Exhibit No. 71, thereby rejecting the application of the present petitioner for amendment of plaint.

3. The facts give rise to the present petition are as under:

It is the case of the petitioner-plaintiff that respondent No. 1/defendant No. 1 had leased out Pressing Unit to the plaintiff for a period of 7 years on rent of Rs. 6,000/- per year. It is further contention of the petitioner that though the lease was to expire on 1-8-2000, the lease was not terminated by the respondent No. 1 and the said lease still continued. It was further contention that the respondents started construction of wall at point No. A and B to the said Pressing Unit. It was further contended that the said defendants were trying to raise the height of wall at point A and B. In the background of this factual position, the petitioner-plaintiff filed a suit for mandatory injunction directing the removal of the said wall at point A and B and further restraining the defendants from raising any wall towards eastern side of the Pressing Unit, etc. The suit was resisted by the defendants on various grounds. One of the grounds raised in the written statement was that the plaintiff himself had delivered vacant and peaceful possession on the expiry of the lease period i.e. in the first week of November 200 1.

4. The petitioner filed an application for amendment of the plaint on or about 4-7-2005. By way of amendment application, the plaintiff had sought to bring on record certain facts regarding dispossession. It was sought to be brought on record that during the night of 6-12-2001 and 7-12-2001, the defendants have taken forcible possession of the Pressing Unit. Certain ancillary facts were also sought to be brought on record by way of said amendment. The reason given by the petitioner for delay in making application for amendment was that, when at the stage of evidence of the suit the matter was examined by new counsel, it was revealed that the claim relating to possession is not made in the plaint. The learned Civil Judge, Junior Division, Arvi, vide order dated 19-9-2005 found that in view of amended provisions of Order 6, Rule 17 of Code of Civil Procedure which came into effect from 1-7-2002, the application for amendment could not be allowed unless it was established that in spite of exercise of due diligence of the party seeking amendment, the proposed amendment could not have been raised by such party before the commencement of the trial of the suit. It was further found that there is inordinate delay in making application for amendment and as such the application was not tenable and hence, rejected the application. Being aggrieved thereby, the petitioner is before this Court under Article 227 of the Constitution of India.

5. Shri Agnihotri, the learned counsel appearing on behalf of petitioner submits that since the pleadings of which the amendment was sought were already on record prior to 1-7-2002, the date on which the Amendment Act came into effect, the amended provisions of Order 6, Rule 17 could not have been made applicable. He further submits that merely because there is a delay in making application for amendment the same cannot be rejected. He relied upon the judgments of the Apex Court in the case of Sampath Kumar vs. Ayyakannu and another reported in AIR 2002 se 3369 and in the case of Baldev Singh and others vs. Manohar Singh and another reported in 2006(5) Mh.L.J. (SC) 634 = 2006(6) SCC 498. He further submits that in view of Article 64 of Indian Limitation Act, 1963, the claim of possession which was based on dispossession was within limitation as limitation described is of 12 years. He submits that in any case, if the Court wants to work ou

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