(1) WP. 5329.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5329 OF 2010 Masum S/o Hasmu Shaikh, Age : 68 years, Occu.: Agri., R/o Malkondji, Tq. Ausa, Dist. Latur .. PETITIONER VERSUS 1. Jafar S/o Hasmu Shaikh, Age : 50 years, Occu.: Agri., R/o Malkondji, Tq. Ausa, Dist. Latur 2. Alam S/o Hasmu Shaikh, Age : 45 years, Occu.: Agri., R/o Ausa, Tq. Ausa, Dist. Latur 3. Hurmatbee w/o Hasmu Shaikh, Age : 93 years, Occu.: Household, R/o Ausa, Tq. Ausa, Dist. Latur 4. Umrao S/o Sheikhlal Almale, Age : 68 years, Occu.: Agri., R/o. Tungi, Tq. Ausa, Dist. Latur 5. Gulab S/o Umrao Almale, Age : 38 years, Occu.: Agri., R/o Tungi, Tq. Ausa, Dist. Latur 6. Hujuur S/o Umrao Almale, Age : 28 years, Occu.: Agri., R/o Tungi, Tq. Ausa, Dist. Latur 7. Jainubee S/o Osman Masumdar, Age : 30 years, Occu.: Household, R/o Limbaladau, Tq. Ausa, Dist. Latur (2) WP. 5329.2010 8. Laxman S/o Vishwambhar Jagtap, Age : 45 years, Occu.: Agri., R/o Malkondji, Tq. Ausa, Dist. Latur .. RESPONDENTS ... Mr. B.N. Patil, Advocate for the Petitioner Mr. G.K. Naik Thigle, Advocate for the respondents nos. 1 and 2 ... CORAM : V.R. KINGAONKAR, J. DATED : 5TH AUGUST, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. 2. By this Petition, the petitioner challenges order dated 20.4.2010 rendered by the learned Civil Judge (Junior Division), Ausa on his application (Exh.62) in Civil Suit bearing R.C.S. no. 376 of 2007. The petitioner filed the suit for partition and separate possession. The basic contention of the petitioner is that the respondents brought about a false document styled as "hibba" and based thereupon obtained a collusive Court decree in order to deprive (3) WP. 5329.2010 him of his legal rights in respect of the suit land. The petitioner pleaded, categorically, in the plaint that the decree is collusive and was brought about by taking undue advantage of the old age of his father, namely, Hasmu Shaikh. The only thing which he had not claimed was regarding the declaration that the said decree was of collusive nature and was not binding on him because he was not a party thereto. He, therefore, sought amendment of the pleadings in the plaint by adding paragraph no.1A in the prayer clause to the effect that the collusive decree obtained in civil Suit bearing R.C.S. 265 of 2002 was not binding on him as he was not a party and the same was void ab-initio. The amendment application came to be rejected. Hence, the Petition. 3. Heard learned counsel for the parties. 4. Perusal of the impugned order rendered by the learned Civil Judge shows that the amendment application has been rejected for the reason that the relief is barred by limitation under Article 65 of (4) WP. 5329.2010 the Limitation Act, 1960. I am at pains to note that purport of Article 65 of the Limitation Act is not properly appreciated and understood by the learned Civil Judge. The petitioner had not asked for relief in respect of possession nor it was case of the respondent that they were in adverse possession of the suit land. The petitioner had sought amendment only to the extent of declaratory relief about nature of collusive decree which he claimed to have been obtained behind his back and by taking undue advantage of the senility of his father. It is required for the trial Court to properly appreciate the nature of amendment and then to consider whether it is to be allowed in view of Order 6 Rule 17 of the Code of Civil Procedure. The exercise seems to have been perfunctorily carried out by the learned Civil Judge. Needless to say, the impugned order is quite un-sustainable and perverse. 5. Mr. Thigle submits that similar plea was raised in the earlier suit filed by the petitioner and that the suit had been withdrawn by him without (5) WP. 5329.2010 any condition. He would submit that the second suit on the same cause of action is, therefore, not maintainable. That defence of the legal bar is already raised in the written statement and will not be affected by granting of leave to amend the plaint. The defence of the respondents regarding legal bar to the maintainability of the suit filed by the petitioner is kept open and shall be decided on its own merits and if so required by raising preliminary issue in this behalf. 6. Considering the foregoing reasons, the Petition is allowed. The impugned order is set aside. The Application be deemed as granted and the petitioner is allowed to amend the pleadings accordingly. Rule made absolute accordingly. No costs. Sd/- [V.R. KINGAONKAR, J.] arp