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 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 out the equities, the Court can direct the amendment instead of being related to the date of filing of the suit, it shall relate only to the date of the amendment. 6. Shri D. L. Dharmadhikari, the learned counsel appearing on behalf of respondents vehemently opposed the petition. He submits that in any case, if the Court wants to work out the equities, the Court can direct the amendment instead of being related to the date of filing of the suit, it shall relate only to the date of the amendment. 6. Shri D. L. Dharmadhikari, the learned counsel appearing on behalf of respondents vehemently opposed the petition. He submits that amended provisions of Order 6, Rule 17 are clearly applicable to the facts of present case. He further submits that there is inordinate delay, which has not been explained in the application for amendment. He further submits that reason given in the application is not genuine. He, however, submits that if the application for amendment is allowed, the Civil Judge, Junior Division, will have no jurisdiction to entertain the suit as the same will have to go before the Civil Judge, Senior Division, Wardha. 7. Insofar as applicability of the amended provisions of Order 6, Rule 17 of Code of Civil Procedure is concerned, it will be necessary to refer Section 16 of The Code of Civil Procedure (Amendment) Act, 2002. The relevant provision reads thus : 16. Repeal and Saving. - ... (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897), - ... (b)the provisions of rules 5,15,17 and 18 of Chapter VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section of this Act;. It could thus be seen that the legislative intent regarding the applicability of amended provisions in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999, is very clear. Section 16(2)(b) of the Amendment Act, 2002 provides that the provisions of section 7 shall not apply to in respect of pleading filed before the commencement of section 16 of the Amendment Act, 2002. Section 16(2)(b) of the Amendment Act, 2002 provides that the provisions of section 7 shall not apply to in respect of pleading filed before the commencement of section 16 of the Amendment Act, 2002. The amendment to the provisions of Order 6, Rule 17 of the Code of Civil Procedure has been made by way of section 7 of Amendment Act, 2002. In that view of the matter, I am unable to accept the contention raised by the learned counsel for the respondents. The amended provisions of Order 6, Rule 17 are to be applicable to the pleadings, which are not filed prior to commencement of the Amendment Act, 2002. Admittedly, the plaint is filed prior to 1-7-2002 i.e. the date on which Amendment Act came into effect, as such the amended provisions of Order 6, Rule 17 would not be applicable to the amendment of plaint in question. 8. Insofar as second contention of delay is concerned, the Apex Court in the case of Sampath Kumar vs. Ayyakannu and another, in which the facts were almost similar as are in the present case, in Paragraph No. 11 has observed thus: "11. in the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. " It could be seen that in the case before the Apex Court prayer for possession on the ground of forcible dispossession was made after a period of 11 years. The Apex Court found that in order to avoid multiplicity of the litigation and since the basic structure of the suit was not changed, it was in the interest of justice to allow the amendment. The Apex Court further found that in order to protect the interest of defendants it could be directed that the amendment would relate back to the date on which the application of amendment was made and not to the date of the suit. 9. The Apex Court in the case of Baldev Singh and others vs. Manohar. Singh and another took a view that delay of 3 years in filing application for amendment written statement cannot be a ground for rejecting application for amendment of written statement. It has further been held that the Court should be extremely liberal in granting the prayer for amendment of pleadings unless prejudice has been caused to the other side. 10. The present case is squarely covered by the law laid down in the judgment of Apex Court in case of Sampath Kumar. It has further been held that the Court should be extremely liberal in granting the prayer for amendment of pleadings unless prejudice has been caused to the other side. 10. The present case is squarely covered by the law laid down in the judgment of Apex Court in case of Sampath Kumar. The facts are almost identical in the said case. The claim for possession was made after a period of 11 years whereas in the present case it is made after about 4 years. 11. Insofar as third contention of the respondents that if the amendment is allowed, the Civil Judge, Jr. Division will have no jurisdiction, is concerned the learned Single Judge of this Court has taken a view in the case of Devichand Ratanchand Solanki and another vs. Premshankar Shivram Bajpayi [ 1994(1) Mh.L.J. 1001 ] as under: "Civil Court can permit amendment of pleadings which would result in ousting its own jurisdiction. It is only after the amendment under Order 6, Rule 17 of the Civil Procedure Code is allowed and carried out that objection in regard to the jurisdiction of that Court can be raised and if the Court is satisfied in regard to the ouster of its jurisdiction it would return the amended plaint to the plaintiff for presentation to the proper Court under Order 7, Rule 10 of the Civil Procedure Code. " In paragraph No.5 this Court has observed as under: .... "5. Thus it is only after the amendment is allowed and carried out that objection in regard to the jurisdiction of that court can be raised and if the court is satisfied in regard to the ouster of its jurisdiction, it would return the amended plaint to the plaintiff for presentation to the proper court under Order 7, Rule 10 of the Civil Procedure Code. That stage has not yet arrived in the present case. The petitioners have challenged the order of the court which only allows the amendments and directs the party to carry out the same. There is no infirmity in the said order. It is fully within the scope and ambit of the powers of the court under Order 6, Rule 17 of the Civil Procedure Code. In that view of the matter I do not find any reason to interfere with the said order. There is no infirmity in the said order. It is fully within the scope and ambit of the powers of the court under Order 6, Rule 17 of the Civil Procedure Code. In that view of the matter I do not find any reason to interfere with the said order. If any of the parties wants to raise any objection in regard to the jurisdiction of the court concerned to proceed with the case in view of the amended plaint or the written statement, it has to make an application before that court in that behalf and in that event it would be for that court to dispose of the same in accordance with law. Such an objection cannot affect the power of the court to allow amendment of the pleadings. The Court has ample jurisdiction to pass suitable orders on the application for amendment of the pleadings and in the case the amendment is allowed and carried out, the proper course to be followed is to return the amended plaint to the plaintiff for presentation to the proper court under Order 7, Rule 10 of the Civil Procedure Code. " It is to be noted that the learned Single Judge has sought support from the judgment of Division Bench of this Court in the case of Benisham vs. Mahadeo, reported in 1985 Mh.L.J. 616 = AIR 1985 Bombay 462. In that view of the matter, the third contention raised by the learned counsel for the respondents would also be without any merit. The question of ouster of jurisdiction would arrive only after amendment is allowed. 12. In that view of the matter, I am inclined to allow the petition. The impugned order dated 19-9-2005, is quashed and set aside. The application of the present petitioner for amendment of the plaint below Exhibit No. 71, is allowed subject to deposit of costs by the petitioner which are quantified at Rs.3000/(Rs. Three thousand only), within a period of four weeks, in the Trial Court. The deposit of costs shall be condition precedent for allowing the application. On deposits of such costs, the respondents would be entitled to withdraw the same. In order to protect the interest of defendants, it is directed that amendment shall not relate back to the date of the suit but shall relate to the date on which application for amendment was made. On deposits of such costs, the respondents would be entitled to withdraw the same. In order to protect the interest of defendants, it is directed that amendment shall not relate back to the date of the suit but shall relate to the date on which application for amendment was made. On such amendment being carried out the parties are at liberty to raise the issue of jurisdiction of the Court. It is made clear that nothing observed herein shall be construed as observed on merits. Parties are at liberty to raise all the issues raised herein, before the Trial Court. 13. Rule is made absolute in the aforesaid terms. No order as to costs. Petition allowed.