1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4716 OF 2009 Mahavir Devappa Mangave Petitioner versus Annappa Appa Mangave Respondent Vijay Killedar for petitioner. Ashutosh Gole for respondent no.1. CORAM : A.S.OKA, J. DATE : 15th February 2010 PC :- 1. Heard learned counsel for the petitioner and learned counsel for the respondents. The first to third respondents are the only contesting respondents being the defendants in the suit. 2. By the impugned order an application for amendment of the plaint made by the petitioner has been rejected by the Trial Court. The petitioners filed a suit simplicitor for injunction restraining first to third respondents from interfering with their alleged possession. The application for amendment of the plaint was made with an allegation that after the application for temporary injunction was rejected, the 2 petitioners have been dispossessed by the first to third respondents. Therefore, prayer in the application for amendment is for incorporating a relief of decree for possession. 3. By the impugned order, the said application has been rejected on the ground that there was a prima facie finding recorded by the Trial Court at the time of hearing of the application at Exhibit-5 that the petitioners were not in possession of the suit premises at the time of institution of the suit. It was also held that the proposed amendment will change the nature of the suit. 4. Learned counsel for the petitioner submitted that rejection of application for temporary injunction is no ground to deny the permission to amend the plaint. He pointed out that the suit has been filed prior to 1st July 2002. Learned counsel for the first respondent supported the impugned order and contended that the amendment will change the nature of the suit. He submitted that the amendment is malafide as the case of the first respondent is that he has been in possession for last more than 35 years. 5. I have given careful consideration to the submissions. The suit has been filed by the petitioners in the year 2001. The case made out in the application for amendment is that after rejection of application 3 for temporary injunction, the petitioners have been dispossessed by the first to third respondents. It is settled law that the Court while deciding the application for amendment cannot go into the correctness of the averments sought to be added by way of amendment. The Court could not have relied upon the tentative findings recorded while deciding an application for temporary injunction. The amendment could not have been refused on the ground that the same will change the nature of the suit. On the contrary, the amendment was necessary to be allowed for avoiding multiplicity of proceedings. It is obvious that notwithstanding the grant of the amendment, the issue of bar of limitation always remains open which can be always agitated by the respondents by filing additional written statement. 6. Hence, the petition must succeed and I pass following order :- (A) The impugned order dated 19th March 2009 is quashed and set aside; (B) The application made by the petitioners at Exhibit-53 is allowed. The amendment shall be carried out to the application within two weeks from the date on which writ of this order is received by the Trial Court; 4 (C) It will be open for the first to third respondents to file additional written statement to the amended plaint within eight weeks from the date of service of the amended plaint. All contentions of the respondents including the contention of bar of limitation are expressly kept open; (D) The petitioners shall pay a sum of Rs.5,000/- (Rs.Five thousand only) to the first respondent being the costs of this writ petition. Amount of costs to be paid or deposited in the Trial Court within eight weeks from today; (E) The writ petition is allowed in the above terms. (A.S.OKA, J.)