IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.1232 OF 2009 Anand Govind Panse ..Petitioner Vs. Laxman Govind Panse and ors. ..Respondents Mr.A.A.Kumbhakoni i/b. Mr.A.M.Joshi , Advocate for petitioner. Mr.G.S.Godbole i/b. Ms.Manjiri S.Parasnis, Advocate for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd April, 2009. P.C. 1 This writ petition under Article 227 of the Constitution of India challenges the order passed on an Application for Amendment of the Plaint. The petitioner is Defendant no.1 in the suit. The suit has been filed way back in the year 1995 against the petitioner and others for declaration and several other reliefs. The declaration that is claimed is that the consent decree in suit No.359 of 1981, which was passed by the Civil Judge Senior Division, Pune on 20.03.1982, is illegal, null and void ab-initio and not binding upon the original Plaintiff. 2 It is stated in paragraph No.13 of the plaint that the cause of action for the suit accrued for the first time in the month of October 1991 when the Petitioner applied for extract of city survey and came to know about the compromise decree. The cause of action thereafter, continues to accrue. 3 The only argument canvassed by Mr.Kumbhakoni, learned counsel appearing for the Petitioner is that the suit is filed on 18.03.1984 but the Plaintiff did not pay any court fees thereon. Therefore, the Trial Court rejected the plaint on the ground that the amount of court fees was not paid in time. That order came to be challenged in Civil Revision Application which was allowed ex-parte and this Court granted time to the Plaintiff to pay court fees, having clarified that the plaint shall be deemed to be lodged on the date when the amount of court fees is paid. Thus, Revision petition preferred by the original Plaintiff was also allowed in the absence of the Petitioner before me. Accordingly, the Petitioner was left with no alternative but to prefer a Review Application which was placed before the Division Bench of this Court on 06.03.2000 and this Court restored the condition that the suit shall be deemed to be instituted on the date on which the amount of court fees is paid. 4 The further submission of Mr.Kumbhakoni is that the Petitioner contested the claim in the suit by raising a plea of limitation. It was contended that the suit claim is time barred as the suit is instituted challenging the decree of the year 1982 in the year 1995. Accepting this position, the Court below has framed Issue of limitation, in the year 2003, as a preliminary issue and the parties were permitted to place their version before the Trial Court. When this position was prevailing and the matter was being contested on the point of limitation, the application for amendment was made wherein paragraph No.13-A is being added which gives rise to a new cause of action. It is not a mere elaboration of the earlier plea on cause of action and in such circumstances, a valuable defence of the Petitioner is likely to be lost. That has caused prejudice and the same cannot be compensated by payment of costs. For this reason the order under challenge must be set aside. Mr.Kumbhakoni relied upon a decision of the Supreme Court reported in (2005) 9 SCC 304, Raj Kumar Vs. Dipender Kaur Sethi. 5 On the other hand, Mr.Godbole, learned counsel appearing for the Respondent contended that if the unamended plaint is perused as a whole, the Plaintiff has set out as to how the suit claim is not barred by limitation. While stating so, the Plaintiff has pointed out that he came to know about the compromise decree for the first time in October 1991. By the amended pleas, further elaboration is set out which would in no way prejudice the Petitioner. Ultimately, the issue of limitation is framed as a preliminary issue and the trial is unaffected by mere incorporation of paragraph No.13-A in the plaint. He has contended that a discretionary order has been passed assigning cogent and satisfactory reasons for permitting the amendment to the plaint and the same should not be disturbed by this Court under Article 227 of the Constitution of India. Mr.Godbole, relied upon a decision of the Supreme Court reported in (2006) 4 SCC 385, Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others. 6 Having perused the petition and annexures thereto including the amendment proposed and the reasons assigned by the Court below, I am of the opinion that in the peculiar circumstances of this case no prejudice is being caused to the Petitioner. The plaint as unamended states that the Plaintiff became aware of the decree for the first time in October 1991. The plaint sets out as to how he became aware and that is when he applied for a copy of the extract from the City Survey Office. Now, the date on which the certified copy is received is set out. Thereafter, it is elaborated that the Plaintiff applied for certified copy of the proceedings in the suit and received the certified copy of the proceedings on 03rd April 1992. It is on perusing this copy, he came to know about the decree. In my view, merely because this elaboration is permitted, it does not mean that a conclusive finding has been reached on the point of limitation. The defence as raised by the Petitioner remains unaffected even after this elaboration. It is not as if the elaboration being done or permitted, that the effect of the order passed by this Court has been diluted straight way. The orders of this Court, if they have attained finality, remain on record. It is in the backdrop of these orders alone that the pleas on limitation as raised in the plaint so also now elaborated will have to be considered. Therefore, mere incorporation of the pleas has in no way affected the defence nor caused prejudice to the Petitioner. I am in the agreement with the reasoning of the Trial Court that what is permitted by amendment is elaboration of the cause of action. That is not substitution or change of cause of action set out in the plaint. The time as to when it arose is being set out more elaborately. This is all, that has been so and permitted to be done. I see no reason as to how all this prejudices the Petitioner or amounts to a change of the cause of action. 7 For these reasons, it is not possible to agree with Mr.Kumbhakoni that the order under challenge suffers from an error apparent on the face of record. The decision relied upon by him is distinguishable. It is settled principle that the amendment should not work injustice to the other side. The Hon'ble Supreme Court made the observation when it considered a challenge to the order passed by the Punjab and Haryana High Court. The fact situation and the plea raised in the application for amendment is set out in paragraphs Nos.3 and 4 of the Supreme Court Decision. It is in that context and background, that the observations in paragraph Nos.8 and 9 are made. The Trial Court's order dated 09.02.1995 was restored. That order allowed the amendment as prayed for. Thus, the High Court's order was set aside and the appeals before the Supreme Court were allowed. It is, therefore, clear that the observations have been made in that context. Even where a second amendment was permitted it was held that there is no prejudice or injustice on that count. Far from assisting the Petitioner, the broad principles laid down in the Supreme Court Decision are fully applicable in this case. 8 In the result, the petition fails and is accordingly, dismissed. However, it is clarified that all the pleas of both sides on the issue of limitation are kept open. The Trial Court to consider and decide the issue without being influenced by the observations made in the order under challenge. 9 Petition dismissed. No costs. [S.C.DHARMADHIKARI, J] *1232-09