SRJ wp-8454-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8454 OF 2009 Shri Arun Krishna Londhe ..Petitioner. Vs. Shri Prakash Krishna Londhe ..Respondent. Mr.Dilip Bodake, for Petitioner. CORAM : A.S.OKA, J.. DATE : 8th October, 2009. P.C. : 1] The Petitioner is the original Defendant and the Respondent is the original Plaintiff. A suit was filed by the Respondent on 25 th October, 2001 claiming declaration that on the basis of Gift Deed dated 20 th May, 1954, the Respondent has become the sole owner of the suit property. The Gift Deed is registered Deed executed by deceased Gangubai S. Londhe. In December 2001, the Petitioner has filed Written Statement and Counter Claim. The Counter Claim was for declaration of ½ share in the suit property and for a decree of partition. On 18 th November, 2008, the Petitioner made an application for amendment of the Counter Claim for incorporating a prayer for declaration that the Gift SRJ wp-8454-09.sxw 2 Deed dated 20 th May, 1954 was illegal, void and was liable to be set aside. By the impugned order, the said application has been rejected on the ground that ex-facie the proposed amendment was barred by limitation. 2] The learned counsel for the Petitioner submitted that the issue of bar of limitation will have to be decided on evidence, as the said question in a mixed question of law and fact. He submitted that the Petitioner was not aware of the said document. He submitted that a declaration is sought that the document is null and void. 3] It is not possible to find fault with the impugned order. The only declaration claimed by Respondent is on the basis of Gift Deed dated 20 th May, 1954. Written Statement and Counter Claim was filed in December, 2001. In paragraph 5 of the Written Statement, the Petitioner has stated that the said Gangubai executed the Gift Deed in favour of the Respondent only with a view to ensure that the property subject matter of Gift Deed remains protected. In paragraph 5, the Petitioner has specifically admitted that the doner Gangubai was the owner of the suit property and that she executed the Gift Deed in favour of the Respondent. There is no SRJ wp-8454-09.sxw 3 challenge to the Gift Deed in the original written statement filed in December, 2001. Now, by filing an application in November, 2008, the Petitioner wants to amend his Counter Claim for incorporating a prayer that the Gift Deed dated 20 th May, 1954 was illegal, null and void. Apart from the bar of limitation, the amendment does not appears to be bonafide. Hence, no case is made out for interference under Article 227 of the Constitution of India. 3] The Petition is rejected. All rights and contentions of the parties on merits of the suit are kept open. (A.S.OKA, J. )