( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 123 OF 2009 Vinod s/o. Khimji Lodaya and Anr. .. Applicants Versus The Chief Executive Officer and Ors. .. Respondents Shri A.P. Bhandari, Advocate for the applicants. Shri M.B.W. Khan, Advocate for respondent No.1. Shri H.V. Patil, Advocate for respondent No.10. CORAM : P.R. BORKAR,J. DATED : 22.07.2010 P.C. :- 1. This Civil Revision Application challenges order of rejection below application Exh. 115, for amending plaint in Suit No. 22 of 2005, by order dated 13.07.2009, passed by the Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad. 2. The facts giving rise to this application may be stated as below :- . The suit is filed by the revision applicant for declaration that the impugned order dated 05.03.2005 under ( 2 ) section 54 of the Wakf Act, 1995, passed by the Additional Collector and Chief Executive Officer, Maharashtra State Board of Wakf, Aurangabad, is illegal, null & void; and for injunction not to implement or execute said order. Initially, the Chief Executive Officer of the Wakf Board made enquiry under section 54 (3) of the Wakf Act and has come to a conclusion that 49 persons including present applicants had made encroachment on the Wakf property pertaining to the religious institution, namely, Dargah Hazrat Quader Auliya, situated at C.T.S. No. 12889 at Aurangabad. The order was for removal of encroachment. In para 5 of the suit, it is averred by the present applicants that they have been in possession of the property since 1331 Fasli i.e. 1921 A.D. It is also alleged that they have possessory title by lapse of time. The issues were framed at Exh. 102 on 10.08.2007. Subsequently, there was amendment to the issues and issue No. 4 was re-cast. By proposed amendment sought by the application Exh. 115, the plaintiffs/revision applicants sought to raise plea of bar of limitation to the proceeding under Section 54 of the Wakf Act and it is stated that since the proceedings are barred by limitation, they are not tenable. ( 3 ) 3. Heard Adv. Shri A.P. Bhandari for the applicants, Adv.Shri M.B.W. Khan for respondent No.1 and Adv. Shri H.V. Patil for respondent No.10. 4. The learned advocate Shri Bhandari argued that as held in the case of Bhagwandas Kanhaiyyalal Bubna V/s. Shyamsunder Wasudeo Bubna and Ors., 2010 (1) Bom.C.R. 218 in para 6, until plaintiff files evidence of affidavit, trial cannot be said to be commenced and in the circumstances, the amendment which was sought at pre-trial stage ought to have been allowed. He also relied upon law summarised in para 33 of the case of Bharat Petroleum Corporation Ltd., V/s. Precious Finance Investment Pvt. Ltd., 2006 (6) Bom.C.R. 510. Particularly he referred to sub-paras (iii), (iv), (xi), (xiii) and (xvi) of para 33, which lay down that Court should not adopt hyper technical approach and amendment should be allowed, if other side can be compensated with costs. Unless the amendment is fraudulent, it should not be rejected. The case of Vidyabai & Ors., V/s. Padmalatha & Anr., AIR 2009 SC 1433, is cited for proposition that after filing of affidavit in lieu of examination-in-chief, trial can be said to have ( 4 ) commenced. The reason given for refusing the amendment, however, mainly is that application at Exh. 115 is given at belated stage and object is mainly to prolong the litigation. However, Adv. Shri Bhandari stated that the application is bona fide and not actuated with any desire to protract the litigation. He says that he is ready to co-operate for early hearing and expeditious disposal of the suit. Adv. Shri M.B.W. Khan and Adv. Shri H.V. Patil for respondent Nos. 1 and 10 respectively are also ready to co-operate. 5. Adv. Shri M.B.W. Khan has drawn my attention to para 107 of the Wakf Act, 1995, which lays down that nothing contained in the Limitation Act, 1963 (36 of 1963) shall apply to any suit for possession of immovable property comprised in any wakf or for possession of any interest in such property. Said section along with section 27 of the Limitation Act, 1963 will have to be examined and interpreted. Particularly in view of pleading by the plaintiff that he has been in possession of the property since 1921 A.D. and having regard to the circumstances, the Civil Revision Application deserved to be allowed in the interest of justice, as trial has not yet commenced. It is ( 5 ) argued that for various reasons given in the order, the matter has been protracted. But, it cannot be said that only plaintiffs are responsible for the same. For example, when the plaintiffs gave application Exh. 102 for rectification of issues, it was found that issue No.4 really deserved rectification and recasting and that was done by order dated 20.01.2009. 6. Having regard to all circumstances, this revision application is allowed. The order passed by the Wakf Tribunal on 13.07.2009 below application Exh. 115 is hereby set aside. Application Exh. 115 of amendment of the plaint is allowed. The amendment be carried out at the earliest and thereafter the suit to proceed further according to law and it should be disposed of as expeditiously as possible. 7. The Civil Revision Application is accordingly allowed and disposed of. [P.R. BORKAR,J.] snk/2010/JUL10/cra123.09