JUDGMENT : Irshad Ali, J. 1. Heard learned counsel for the petitioner and to Sri Shailendra Singh Chauhan, learned counsel for the respondents. 2. Submission of learned counsel for the petitioner is that Suit No.201 of 1988 was filed in the Court of Civil Judge, North (Junior Division), Lucknow for declaration and for the grant of permanent injunction to the plaintiff. Written statement was filed by the defendant on 20.12.1989. Proceeding of auction was initiated by the State Government after acquisition of some portion of the land in dispute. The petitioner contested the suit which was dismissed on 22.9.2009. Against the judgment and decree, civil appeal was filed on 4.11.2009. 3. During the pendency of the appeal, the petitioner moved an application for amendment in the plaint on the ground that in accordance with the map of the building, an outer place adjacent to the building could not be shown properly in the plaint. The area as per the map is 3 Bigha 12 Biswa 17 Biswansi and 6 Kachwansi (total 100550.66 sq. ft.) and in the plaint, the area has been shown to be 3 Bigha 7 Biswa 8 Biswansi and 9 Kachwansi (total 91778.85 sq. ft.). 4. The learned Additional District Judge, Special Court C.B.I. Lucknow vide order dated 2.2.2017, rejected the amendment application on the ground that in the judgment and decree passed, it has been recorded that the plaintiff has no legal heir, therefore, in case amendment is permitted to be done, then the nature of the suit will be changed inasmuch as the application for condonation of delay filed along with amendment application has also been rejected on the ground that there is delay of 28 years in making amendment in the plaint. 5. Submission advanced by learned counsel for the petitioner is that the petitioner is not seeking any relief which changes the nature of the plaint. The only change has been sought is that area as per the lease deed map has been shown lesser than the actual area, therefore, finding recorded that vide amendment application, the petitioner is seeking mutation, is totally misconceived. The only change has been sought is that area as per the lease deed map has been shown lesser than the actual area, therefore, finding recorded that vide amendment application, the petitioner is seeking mutation, is totally misconceived. He next submitted that in regard to the delay, there are catena of judgments of this Court as well as of the Apex Court that the case should not be rejected on technical grounds, it should be decided on merit, therefore, the finding recorded on the point of delay by the learned Additional District Judge is not sustainable in law. 6. Learned counsel for the petitioner placed reliance upon a judgment rendered in the case of State Bank of Hyderabad Vs. Town Municipal Council, 2007 1 SCC 765 . He also placed reliance upon North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead), 2008 8 SCC 511 on the point of delay and amendment at the appellate stage. 7. On the other hand, Sri Chauhan, learned Advocate appearing for the respondents submitted that by means of the amendment application, the petitioner is seeking mutation in the plaint alleging himself to be only legal heir of Smt. Chandramani Dubey, therefore, such type of amendment which changes the nature of the suit is not permissible in law. He further submits that the impugned order passed by the appellate court does not suffer from any infirmity or illegality and is a just and valid order. 8. After having heard the rival contention of learned counsel for the parties, I perused the material on record as well as the impugned order and law report cited by the learned counsel for the petitioner. 9. In the case of State Bank of Hyderabad (Supra), the relevant are paragraphs 11, 12 and 13, which are being quoted below :- 11. It is one thing to say that the application for amendment suffers from delay or laches but it is another thing to say that thereby the defendant was prejudiced. It is also not a case of the respondent that by reason of such an amendment, the relief which could not be granted having regard to the law of limitation has become available. The court even in such a case is not powerless although the question as to whether the relief sought for would be otherwise barred by limitation is a relevant factor to determine the issue. 12. The court even in such a case is not powerless although the question as to whether the relief sought for would be otherwise barred by limitation is a relevant factor to determine the issue. 12. This aspect of the matter has been considered by this Court in L.J. Leach and Company Ltd. v. Jardine Skinner and Co., 1957 SCR 438 in the following terms: "It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice" 13. L.J. Leach and Company Ltd. (supra) was referred to in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Others, 1957 SCR 595 holding: "We think that the correct principles were enunciated by Batchelor J. in his judgment in the same case, viz., Kisandas Rupchand's case, when he said at pp. 649-650 : "All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties...... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not ?" 10. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not ?" 10. On its perusal, it is established that the Supreme Court while considering the matter of delay, has recorded that no one should suffer and no prejudice should be caused by throwing the petition on the ground of latches or delay. 11. In the present case also while rejecting the amendment application, the ground has been taken that in case amendment is permitted to be carried out in the plaint, the nature of suit will be changed as the plaintiff/ petitioner wants to enhance the area defined under the foot of the plaint. 12. In view of the above, in the opinion of the Court, the finding returned on the amendment application by the appellate court, is not sustainable as in case amendment is not permitted, the area of the lease map prescribed will not come in deciding the appeal, therefore, the appellate court has committed gross illegality in rejecting the application for amendment. 13. In the case of North Eastern Railway Administration, Gorakhpur (Supra), the relevant is paragraph 16, which is being quoted below :- "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar)." 14. On perusal of the above referred judgment, it is reflected that it permits consideration of amendment at appellate stage. The ratio laid down by the Supreme Court in the above referred judgment is fully applicable to the present facts and circumstances of the case. (Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar)." 14. On perusal of the above referred judgment, it is reflected that it permits consideration of amendment at appellate stage. The ratio laid down by the Supreme Court in the above referred judgment is fully applicable to the present facts and circumstances of the case. 15. In view of the reasons assigned above, the impugned order dated 2.2.2017 is liable to be set aside. Accordingly, it is hereby set aside. 16. The appellate court is directed to reconsider the amendment application of the petitioner and pass appropriate order on the amendment application in the light of the observation made above, within a period of 4 months from the date of production of certified copy of this order. 17. With the aforesaid observation and direction, the writ petition succeeds and is allowed.