1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.7826 of 2009 Sanjiv Vishnupand Tupsakhare & ors. ... Petitioners versus Dattatraya baburao Takale & Ors. ... Respondents ... Mr. S.K.Shinde with Sagar Dighe i/b Sagar Joshi for the petitioner. Mr.S.M.Gorwadkar for respondent nos.2 and 4. CORAM : D.G. KARNIK, J. DATED : 11th June 2010 P.C. 1. Heard. 2. By this petition, petitioner challenges the order dated 27th June 2008 passed by the Joint Civil Judge, Sr. Division, Nashik rejecting the petitioner’s application at Exhibit-78 for amendment of the plaint. 3. Learned counsel for the petitioner submitted that the suit was initially dismissed and against the order of dismissal, the petitioner has filed an appeal bearing Civil Appeal No.216 of 2001 in the District Court at Nashik. The District Court allowed the appeal and remanded the matter back to the trial court after granting permission to adduce 2 additional evidence to the plaintiff under Order 41 Rule 27 of the Code of Civil Procedure. While remanding the matter, the District Court also observed in one line that the parties are permitted to amend the pleadings. Counsel for the petitioner submitted that in view of the specific permission granted by the District Court to amend the pleadings, the trial court ought to have allowed the application for amendment. 4. I am unable to agree. The order of the District Court must be read as a whole. A sentence or two from the order cannot be picked up to say that there was an omnibus permission was granted by the District Court to allow the amendment. Draft of the proposed amendment was not before the District Court and therefore, the District Court could not have allowed an omnibus amendment. That was not the purport of the order of remand passed by the District Court. The observation of the District Court was limited to the extent that while considering additional evidence the parties may amend the plaint so as conform to the rule that evidence must relate only to the pleadings. 5. I have perused the original plaint as well as the draft amendment. The suit is for specific performance and the cause of action is stated to have arisen on 27th July 1983 when the petitioner sent a notice on calling upon the respondent to execute the sale deed. By the proposed amendment, Mr. Tulsidas Mahadu Hirve who was not a party to the suit is sought to be added as defendant no.5. The suit against the proposed defendant no.5 was hopelessly barred by limitation on 16th July 2007 when the application for amendment was submitted. In the circumstances, the defendant no.5 could not have been joined as a 3 party to the suit as the suit was hopelessly time barred against him. The further amendments are consequent to the joining Mr. Tulsidar Mahadu Hirve as a party defendant no.5. Since that amendment cannot be allowed, the other portion of the amendment also cannot be allowed. 5. For these reasons, writ petition is rejected summarily. (D.G. KARNIK,J.)