1. Heard Mr. D.R. Singh, Advocate for the Petitioner and Mr. Girish Lodha, partner of the Respondent (Plaintiff) firm Rule. By consent rule made returnable forthwith and Petition is taken up for hearing on board.

2. Original Plaintiff had filed R.A.E. Suit No. 615 of 1995 for eviction on the ground of default, permanent construction and change of user etc. Subsequently, present Respondent M/s. Sitaram Enterprises a partnership firm, was substituted in place of and instead of the original Plaintiff. The Defendant filed Written Statement on 18/7/1996 and paragraph-1 thereof indicates that the Defendant did not admit the status of the Plaintiff as owner/landlord and the Defendant had also disputed the relationship of landlord and tenant. Various other defences were also raised. After the amendment of the plaint additional written statement was filed on 24/3/2004. Issues were framed on 3/1/2003. Additional issues were framed on 5/5/2005. Thereafter the trial commenced. The Respondent examined its partner. Cross-examination was completed Orders regarding admissibility of documents was passed on 4/11/2009. Thereafter, the Petitioner No. 1 also filed affidavit of examination in chief on 12/7/2010 and he was cross-examined on 1/12/2010 and 6/12/2010. Thereafter the hearing was adjourned on various dates till 5/3/2011 and on 5/3/2011 the Respondent filed an Application below Exh. 62 for amendment of plaint The Application was seeking prayer to addparagraphs 8(a) to 8(f) in the plaint.

3. This Application was opposed by the Petitioners on various grounds. By impugned Judgment and Order dated 13/7/2011, the learned Judge of the Small Causes Court at Mumbai presiding in C.R. No. 37 in Bandra Branch had allowed the said Application for amendment giving rise to the present Writ Petition.

4. Learned Advocate for the Petitioners contends that such an amendment would be barred by the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908. In support of this submission, the learned Advocate has relied upon the Judgment of learned Single Judge at Aurangabad Bench (S.S.Shinde, J) in case of Anil Vishwanath Jadhav v/s. Pankaj Indrajeet Bassi 2010(2) Mh.L.J. 2201. Relying on the said Judgment, the learned Counsel for the Petitioners submitted that even in that case the suit was filed in the year 2001 i.e. prior to the amendment of the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 2002 and hence ratio of the said Judgment will be a binding precedent.

5. Even on merits, the learned Counsel for the Petitioners submits that the proposed amendment would entirely change the nature of suit and the same had been made at the belated stage with malafide intention. Learned Counsel also submitted that the amendment was barred by limitation since the denial of title, if any, was made known to the Plaintiff way back on 18/7/1996 when the Written Statement was filed and the Application for amendment not having been filed within 12 years there from, the proposed 1 2010(2) Mh.L.J. 220 amendment sought to incorporate the plea which was clearly barred by limitation.

6. Partner of the Respondent Firm is appearing in person and supported the impugned order.

7. I have considered rival submissions. At the outset, it is necessary to decide the question as to whether the bar contained in proviso of Order 6 Rule 17 of the Code, 1908 would apply. Parliament has enacted the Code of Civil Procedure (Amendment) Act, 1999 on 30 December, 1999. Section 16 of this Act reads thus :

“In the First Schedule, in Order VI,--

(i) rule 5 shall be omitted;

(ii) in rule 15, after sub-rule (3), the following sub-rule shall be inserted, namely:--

"(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.";

(iii) rules 17 and 18 shall be omitted.”

8. Section 32 of this 1999 Act provides for repeal and saving. This Act was however not brought into force as it is on account of the opposition from the lega