1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8296 OF 2009 Sheshikalabai w/o Baliram Wable & ors. ... PETITIONERS VERSUS Baliram s/o Hanwanta Wable & anr. ... RESPONDENTS ..... Shri Sachin Deshmukh, Advocate for the petitioner Shri R.J. Nirmal, Advocate for respondent No.1. ..... CORAM: K.U. CHANDIWAL, J. DATE : 29th September, 2010. PER COURT: 1. Heard. In a suit for partition and separate possession by the sons against defendant No.1, their father, the partition of properties shown in Appendix A was sought. By virtue of an application below Exh.27, the plaintiff desired to incorporate the other property conveyed by the father defendant No.1 in favour of defendant No.2, by document No.4512, dated 11.12.2001. 2. The learned Judge, while negativing the contentions for allowing the amendment, observed in para No.6 that seven years are lapsed from the date of execution of the sale deed and Article 58 of 2 the Limitation Act bars the suit for declaration, which needs to be instituted within a period of three years from the date of right to sue accrues, and keeping this as one of the aspect, did not entertain the application in terms of Order VI Rule 17 of the Code of Civil Procedure. 3. Mr. Deshmukh, learned counsel for the petitioner/ plaintiff refers to the judgment of the Apex Court in the matter of Andhra Bank Vs. ABN Amro Bank N.V. And Ors., decided on 10.7.2007 (AIR 2007 SC 2511). Their Lordships have observed and I quote, “It is well settled as noted herein earlier, that at the time of considering the prayer for amendment of the written statement, it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable.” 4. This legal position cannot be put into quarrel. The fact remains that in earlier litigation by the plaintiffs seeking perpetual injunction, he had included the property being No.453. The plaintiff was aware at that time about the transaction, but deliberately in a suit for partition, omitted the said property. Since in the earlier suit the plaintiff included the property and later on excluded the property bearing Survey no.453, it is apparent, plaintiff deliberately carried 3 such exercise. Rejection of amendment by the learned Judge, in the above set of facts, cannot be questioned to be erroneous. Writ Petition lacks merits. Hence, it is dismissed. (K.U. CHANDIWAL) JUDGE fmp/wp8296.09