1 (WP3143.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3143 OF 2011 Maniram Jagannath Arekar .... Petitioner. v/s Vishwanath Tukaram Kaloowala and others .... Respondents. Mr. P.N. Karlekar for the Petitioner. Mr. V.P. Sawant for Respondent Nos. 1 to 3. CORAM: V. M. KANADE, J. DATE : 11th July, 2011 P.C.:- 1. Heard the learned Counsel for the Petitioner and the learned Counsel for the Respondents. 2. The grievance of the Petitioner is that his application for amendment of the Written Statement for adding an averment, stating that the suit is barred by law of limitation has been rejected by the Trial Court. It is submitted that after the issues were framed and the Plaintiff filed his affidavit in lieu of evidence, Petitioner/Defendant realized that issue of limitation was not raised and, inadvertently, there was no pleading to that effect in the Written Statement and, therefore, the said application was filed. It is submitted 2 (WP3143.11) that, however, the Trial Court rejected the said application. It is submitted that the question of limitation is a mixed question of fact and law and, therefore, duty is cast upon the Court to consider whether the suit is filed within limitation. It is submitted that no prejudice would be caused to the Plaintiff if the said averment is added in the Written Statement and issue of limitation is framed. Reliance is placed on the judgment of the Apex Court in Baldev Singh and Others vs. Manohar Singh and another1. 3. On the other hand, the learned Counsel appearing on behalf of the Respondents invited my attention to the impugned order. He submitted that though the Trial Court has rejected the application of the Petitioner for amendment, it had observed that issue of limitation could be considered even at the time of final arguments in the suit, if the Defendant succeeds in proving that filing of the suit is barred by law of limitation. He, therefore, submitted that it is not necessary to set aside the impugned order since the Trial Court itself has kept that issue open. 4. In my view, there is some substance in the submissions made by the learned Counsel appearing on behalf of the Respondents. The Trial Court, in terms, in its order dated 4/12/2010, has observed that the said point can be considered at the time of final arguments. Obviously, therefore, the Petitioner/Defendant would be permitted to 1 (2006) 6 SCC 498 3 (WP3143.11) lead evidence on this point and though no issue has been framed, the Court has observed that the said issue would be taken into consideration. This being the position, it is not necessary to interfere with the impugned order. Moreover, the judgment in Baldev Singh and Others vs. Manohar Singh and another1 has been considered by the Apex Court in Vidyabai and others vs. Padmalata and another2 5. Writ Petition is, therefore, dismissed. (V.M. KANADE, J.) 1 (2006) 6 SCC 498 2 (2009) 2 SCC 409