(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 8761 OF 2010 Purushottam s/o. Yuvraj Bhad, Age : Major, .. Petitioner Occupation : Business, (Original defendant R/o. Gangapur, District : Aurangabad. no.2) versus 1. Gorakhnath s/o. Maruti Thokal, Age : 40 years, Occupation : Business, R/o. Gangapur, District : Aurangabad .. Respondents (No.1 - Original 2. Municipal Council, plaintiff Gangapur, & Taluka : Gangapur, No.2 - Original District : Aurangabad, defendant no.1) through its Chief Officer. ....................... Mrs. M.B. Gangwal, Advocate, for the petitioner. Mr. P.F. Patni, Advocate, for respondent no.1. Mr. Y.V. Kakade, Advocate, for respondent no.2. ........................ (2) CORAM : B.P. DHARMADHIKARI, J. DATE : 2ND FEBRUARY 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. The petitioner has challenged the order dated 16th July 2010, passed by the learned Civil Judge (Junior Division), Gangapur, below Exhibit 67, in Regular Civil Suit No. 308 of 2001, thereby allowing the application filed by the respondent no.1 / plaintiff seeking amendment of the suit. 3. The contention of the petitioner is, plaintiff was always aware of possession of the petitioner / defendant no.2 and in a suit instituted in the year 2001, a vague application came to be filed on 10-11-2009, alleging handing over possession by defendant no.1 / Municipal Council to defendant no.2. That application has been allowed without looking into the necessary facts. The learned Counsel appearing for the petitioner states that prayer for restoration of alleged possession is unsustainable as it changes nature of suit and it is also barred by limitation. (3) 4. Mr. P.F. Patni, learned Counsel appearing for respondent no.1 / original plaintiff, states that premises were in possession of respondent no.1 / plaintiff and were handed over to Municipal Council for re-construction. After re-construction, possession was to be handed over to respondent no.1 and when he learnt that the possession is likely to be handed over to the petitioner / defendant no.2, present suit came to be filed. In that suit, in 2009 amendment has been sought pointing out that defendant no.1 / Municipal Council has placed the petitioner in actual possession. 5. The suit is for permanent injunction and the claim is of alleged loss thereof during pendency of suit. The suit has been filed in the year 2001. Therefore, by adding such prayer only nature of suit does not change. 6. However, the learned Counsel appearing for the petitioner has urged that the petitioner was in possession even before institution of suit and hence a plea then available is sought to be now added after nine years. 7. The contention can very well be examined by the trial court. That contention and question of limitation is, therefore, kept open. (4) 8. The petition is, therefore, partly allowed only to that extent. Rule is made absolute accordingly with no order as to costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp8761