1. Heard learned counsel Mr. R.N. Dhorde, i/b. Mr. R.L. Kute Advocate who appears for the petitioner, Mr. L.D. Vakil learned counsel for respondent No.6-a, Mr V.D. Hon learned counsel for respondent No.6-b2 and Mr. S.V. Gangapurwala, learned counsel for respondent No.6-c. Other respondents, to whom notice was issued earlier, are served, absent. This Court by the earlier order dated 9/4/2007 at the request of learned counsel for the petitioner, issued notices only to respondent No.6-a to 6-d since application for amendment was moved for respondent no.6/defendant No.6. Suit is also part heard, therefore notices at the request of learned counsel for the petitioner, were not directed against other respondents.

2. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

3. The petitioner is plaintiff No.1 in Special Civil Suit No.207 of 2002. On instructions from the petitioner, Mr. Dhorde, learned counsel submits, that original plaintiff No.2 Harvinder Kaur has filed

purshis seeking withdrawal of the suit in the trial court. Said purshis as on today, is pending in the suit. Respondents in this Writ Petition are defendants in Special Civil Suit No.207 of 2002. Respondent No.6 is defendant No.6 in Special Civil Suit No.207 of 2002. The parties hereinafter are referred to their status in relation to Special Civil Suit No.207 of 2002.

4. The defendant No.6 iv) Mr. Vinay, has filed an application seeking amendment to the Written Statement on behalf of the defendant No.6. This amendment application, is at Exhibit 405 in the trial court. This application is filed on 21/2/2007. This application is allowed by the trial court and amendment as per Para 16-A is permitted. This order is challenged in this Writ Petition.

5. Learned counsel for the petitioner/plaintiff submits that the written statement on behalf of the defendant No.6 is filed in the trial court on 25/11/2002. Application seeking temporary injunction was filed on behalf of the plaintiff. Said application was rejected. Appeal From Order No.11 of 2005 and 12 of 2005 were filed in this Court. This Court while disposing of these Appeals From Order No.11 of 2005 and 12 of 2005, directed status-quo and has given time frame for early disposal of the suit. Issues were settled in view of the pleadings of the parties on 24/8/2005. Evidence on behalf of the plaintiff by way of affidavit in view of Order 18 Rule 4 of the Code of Civil Procedure was adduced on 15/9/2006. On behalf of the defendant No.4 cross examination of plaintiff no.1, begun on 10/1/2007. Matter was adjourned and ultimately on 20/1/2007 cross examination on behalf of defendant No.4 is over. Plaintiff no.1 is under cross examination by and on behalf of other defendants. On 21/2/2007 when plaintiff was under cross examination, present application Exhibit 405 for amendment came to be filed on behalf of the defendant No.6 as noted above. Copy of this application is made available and annexed as Annexure D with this Petition. By the proposed amendment para 16-A plea of part performance in accordance with the provisions laid down under Section 53 A of Transfer of Property Act is sought to be raised. One more admitted fact needs to be noted is that, one more Special Civil Suit No.171 of 2003 is pending in the trial court. All the learned counsel appearing for respective parties, admitted that, hearing of Special Civil Suit No.171 of 2003 and present Special Civil Suit No.207 of 2002, is being done simultaneously by the trial court. Common evidence is being recorded.

6. Learned counsel for the defendants fairly admitted, that no specific reason, for moving this amendment application, on 21/2/2007 in view of Proviso to Order 6 Rule 17 of the Code of Civil Procedure is stated in the application. According to learned counsel appearing for the defendants , Proviso to Order 6 Rule 17 of the Code of Civil Procedure is not mandatory. The trial court referring to the Judgement of the learned Single Bench of thi