:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3383 OF 2008 PETITION NO. 3383 OF 2008 PETITION NO. 3383 OF 2008 Arun Jagnnath Kusalkar & Anr. ..Petitioners V/s Bhaskar Gagadhar Kapote & Ors ..Respondents Mr.S.A. Sawant for the petitioners Mr.Jaydeep Delo for the respondents CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 24TH JUNE, 2008 : 24TH JUNE, 2008 : 24TH JUNE, 2008 P.C. 1. This petition is directed against the order dated 26th November, 2007, whereby the application of the respondent No.1 for amendment to the plaint came to be allowed. 2. The suit was filed by the respondent No.1/original plaintiff seeking a declaration that the sale deed dated 3-11-2001 be cancelled. The respondent No.1, who is the plaintiff in the suit had filed this application for amendment. The respondent No.1 interalia prayed for injunction against the construction being carried out in the suit property which came to be granted and the matter was carried to this Court and this Court has vide its order dated :2: 26th June,2002 permitted the petitioners herein to carry out the construction at their risk. The petitioners were also restrained from creating 3rd party rights and from parting with the possession of the suit property. 3. It also transpires that there are execution proceedings initiated by the respondent No.1 against the respondent Nos. 2 to 5 pursuant to a decree obtained in Special Civil Suit No. 2042/1996, whereby the respondent No.1 is entitled for the sale deed to be executed in his favour and for possession of the suit premises. 4. It is the case of the respondent No.1 that during the pendency of the suit the petitioners have taken illegal possession of the suit property and started construction and that the respondent Nos. 2 to 5 have despite the decree and lis pendens notice, sold the suit property to the petitioners under the sale deed dated 3-11-2001 of which cancellation is sought in the suit. The respondent No.1 therefore, sought to amend the plaint inter-alia to add the prayer for possession and for payment of separate :3: court fees accordingly. 5. This application was opposed by the petitioners on the ground that the amendment will change nature of the suit and cause of action and that the respondent No.1 is required to file a suit under Section 6 of the Specific Relief Act. It is further contended that the amendment is barred by law of limitation and therefore the application for amendment sought, ought to have been rejected by the Trial Court. The learned Counsel for the petitioners has relied upon the case of Radhika Devi V. Bajrangi Radhika Devi V. Bajrangi Radhika Devi V. Bajrangi Singh Singh Singh and others and others and others, reported in AIR 1996 S.C. 3558, wherein it was held that when the amendment sought is hit by the period of limitation, it would defeat the right accrued in favour of the defendant and therefore the amendment should not be allowed in such circumstances. 6. The learned Counsel for the respondent on the other hand supported the impugned order and relied upon the case of Sampath Kumar V. Ayyakannu and Sampath Kumar V. Ayyakannu and Sampath Kumar V. Ayyakannu and another another another, reported in 2002 (7) SCC 559 wherein it was held that:- :4: " Pre trial amendment should normally be more liberally allowed than amendment sought after commencement of the trial" It is further held in the said decision of the Apex Court that :- "Even if a new cause of action is introduced that would not be a reason for refusing application for amendment during the pendency of the suit." It is further laid down in the aforesaid decision that even if the amendment is barred by limitation, it can be allowed to avoid to multiplicity of the suits and the amendment must be deemed to have been made on the date on which the application for amendment was made. It is further held that delay by itself would not be a ground for rejecting the application. 7. The learned Counsel for the respondent No.1 also relied upon the case of Raghu Thilak D. John V. Raghu Thilak D. John V. Raghu Thilak D. John V. :5: S.Rayappa S.Rayappa S.Rayappa and others and others and others, reported in (2001) 2 SCC 472 wherein it was held that:- "The dominant purpose of Order 6 Rule 17 was to minimise litigation and that even though the nature of the suit is changed that would not be a reason for refusing the application for amendment." In the said case it is further held that:- " even if the relief sought is barred by limitation the amendment should still be allowed and the disputed matter be made the subject-matter of an issue." 8. I have considered the rival contentions of the parties and perused the impugned order including the rulings cited by the Counsel of both the sides. The citations relied upon by the learned Counsel for respondent No. 1 are for the year 2001 and 2002 which specifically permit the amendment even though it may have been barred by limitation as held by the said decisions and the issue of limitation can be left open to be raised in the suit between the parties. 9. In so far as the instant case is concerned, it is not in dispute that the subject matter of the suit is sale deed dated 3-11-2001 and amendment is based :6: on the sale deed and prayer for possession is sought by the amendment after cancellation of the said sale deed. The contentions of the learned Counsel for the petitioner is that the application for amendment does not mention when the petitioners have allegedly taken illegal possession and the plaintiff ought to have filed a suit under section 6 of Specific Relief Act. I am not inclined to go into this aspect of the matter as it would amount to dealing with the merits of the case. Suffice it to say that the issue of limitation would be always open for the petitioners to be raised in the suit and the petitioners are granted liberty in that regard. 10. In this view of the matter I find that the Trial Court has not committed any illegality or infirmity in arriving its decision in allowing the amendment and the impugned order cannot be faulted. 11. With the aforesaid liberty, the writ petition is dismissed. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)