1 WP 7914.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7914 OF 2011 Ramnivas S/o Ramnath Khatod Age : 54 Yrs., Occ. Business and Agriculture, R/o : 12, Shantiniketan Co-op. Housing Society, Aurangabad Through G.P.A. Shrinivas S/o Ramnath Khatod, Age : 57 Yrs., Occ. Business, R/o : Aurangabad. .... PETITIONER V E R S U S 1. Premraj S/o Fakirchandra Mantri Age : 65 Yrs., Occ. Agril. and Business, R/o : 91, Shreya Nagar, Aurangabad. 2. Sandu S/o Kishanrao Patil Age : 52 Yrs., Occ. Service, R/o : Uttam Nagar, Near Jawahar Colony, Aurangabad. 3. Aurangabad Municipal Corporation Aurangabad through its Commissioner. .... RESPONDENTS 2 WP 7914.2011 - [ J ] Mr. K.C.Sant, Advocate for the petitioner. Mr. A.D.Kasliwal, Advocate for Resp No.1 & 2. Smt. R.R.Mane, Advocate for Resp. No. 3. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 14/11/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties taken up for final hearing. 2. The present petitioner has initially filed a Suit for declaration and injunction in the year 1997. In June, 2011 the petitioner/plaintiff had filed an application for amendment. By amendment, also sought the relief of possession. The said amendment application is rejected. Aggrieved thereby the present Writ Petition is filed. 3. Mr. Sant, the learned counsel for the petitioner contends that in fact the amendment sought is in respect of subsequent events. In the year 2010, the lands were measured and at that time the petitioner got the knowledge that the respondents have encroached upon his land. 3 WP 7914.2011 - [ J ] Some land has been purchased by the petitioner individually and some lands were purchased along with the defendants. In both the lands, the respondents have made encroachment and as such the petitioner got the knowledge only after the measurement conducted in the year 2010. The same being subsequent event, could have been allowed by way of an amendment. 4. Mr. Kasliwal, the learned counsel for respondent nos. 1 and 2 submits that all the facts which are sought to be introduced by an amendment, were within the knowledge of the plaintiff. The plaintiff himself had filed a Suit for declaration and injunction and now can not be allowed to convert the Suit in one for possession. The learned counsel further contends that the Suit is filed in the year 1997 and the amendment application is made in June, 2011. On the face of it, the said application is barred by limitation. The learned counsel contends that the learned Court has properly considered all these aspects. 5. With the assistance of the learned counsel for the respective parties, I have gone through the pleadings, the application for amendment and the order. 6. The application was made prior to framing of the issues. The 4 WP 7914.2011 - [ J ] Suit is of the year 1997. So, the amended provisions of Order VI Rule 17 of the Code of Civil Procedure would not apply. It is trite law that application for amendment has to be considered liberally. The petitioner has come forward with the case that the petitioner got the knowledge about the alleged encroachments in the year 2010 after measurement. It is also trite law that the merits of the amendment application are not required to be considered while deciding the said application. At the same time, the rights accrued to the defendants, can not be taken away. As the Suit is filed in the year 1997 and the application for amendment is made in the year 2011, it would be appropriate to allow the application keeping the point of limitation open, so also directing that the amendment though allowed shall not relate back to the filing of the Suit but shall have to be deemed to have been made when the application is filed. 7. As the amendment is being allowed, the defendants are also entitled for the costs. 8. In the result, I pass the following order. The impugned order is quashed and set aside. The application for amendment ( Exh. 70 ) in Spl. Civil Suit 5 WP 7914.2011 - [ J ] No. 18 of 2011 is allowed on condition that the said amendment will not relate back to the date of filing of the Suit, but will be deemed to have been made and given effect from June, 2011 i.e. when the application is made. The point of limitation is also kept open. The petitioner shall pay costs of Rs. 5,000/- ( Rupees Five Thousand only ) to the defendant nos. 1 and 2 within the period of four ( 4 ) weeks from today i.e. 12/12/2011. 9. Rule is made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 7914.2011 - [ J ]