1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5025 OF 2009 Shaikh Nabhi Amir Saheb, Age 59 years, Occu.Agril., R/o Bhoom Peth, Taluka Bhoom, District Osmanabad .. PETITIONER (Orig.Plaintiff) VERSUS Kundlik s/o Rama Akare, Age 80 years, Occu.Agri., R/o Bhoom, Taluka Bhoom District Osmanabad died through L.Rs.: 1) Arun s/o Kundlik Akare, Age 45 years, Occu.Agril., R/o Bhoom, Taluka Bhoom, District Osmanabad 2) Ramesh s/o Kundlik Akare, Age 35 years, Occu.Agril., R/o Bhoom, Taluka Bhoom, District Osmanabad .. RESPONDENTS (Orig.Defendants) Shri B.S.Kudale, Advocate for petitioner Shri S.B.Choudhari, Advocate for respondents 1 and 2 CORAM : S.V. GANGAPURWALA DATE : 1st April, 2010 ORAL JUDGMENT 1. Heard Shri B.S.Kudale, learned Advocate for the petitioner and Shri S.B.Choudhari, learned Advocate for respondents. 2 2. Rule. Rule made returnable forthwith. With the consent of parties, the petition is taken up for final hearing at the stage of admission. 3. The present petition takes exception to the order passed by the learned Civil Judge, Junior Division, Bhoom dated 10.12.2008 below Exh. 30 in R.C.S.No.129/2006 whereby the application for amendment filed by the present petitioners is partly rejected. 4. The petitioners have filed the suit for declaration of ownership and injunction in respect of the suit property. The respondents filed their written statement on or about 10.11.2006. Thereafter on 15.10.2007 vide Exh.30, the petitioners filed an application for amendment of the plaint, so also vide the said amendment application sought rectification of the sale deed of the year 1989. As far as the amendment concerning the correction of boundaries in the plaint is concerned, the learned trial Court has allowed the said amendment but has rejected the same to the extent of the prayer for rectification of the sale deed and for addition of the party who is legal heir of one of the original vendor. 5. While rejecting the amendment in respect of rectification of the sale deed and addition of party, the learned Judge has observed that the sale deed is dated 10.11.1989 and there is no contention in the application as to exactly when cause of action for the rectification of sale deed has arisen and as such the prayer for rectification of the sale deed would be 3 barred by limitation. It was also observed by the learned Judge that the general principle is that the amendment relates back to the date of suit and as such it would not be just and proper to allow the said amendment. 6. Shri Kudale, learned Advocate for the petitioner relying on the judgment of the Apex Court delivered in Usha Devi v. Rijwan Ahmad & Ors., reported in 2008 AIR SCW 1061 and the judgment of this Court in case of Bharat Petroleum Corporation v.Precious Finance Investiment Pvt.Ltd., reported in 2007 (1) Mh.L.J. 331 canvased that amendment ought to be liberally allowed. When the amendment in the plaint has been allowed, there was no impediment for the learned Judge to allow the amendment seeking rectification of the sale deed so also addition of a party would be necessary for determining the correctness of the rectification of the sale deed. It is also submitted by him that the case is at the incipient stage and the trial has not yet commenced. 7. Shri Choudhari, learned Advocate for the respondents vehemently opposed the submissions of the learned Advocate for the petitioner. He contended that ex facia, the amendment sought is barred by limitation. No cause of action is stated in the amendment application. He also submitted that the nature of the suit would change. 8. Having regard to the contentions raised in the amendment application and the arguments advanced, it is clear that the observations 4 made by the learned Judge that the “amendment relates back to the date of the suit” is not of universal application. In appropriate cases, the Court can direct that the amendment would not relate back to the date of filing of the pleadings and can keep the issue of limitation open. 9. It is settled position of law that merits of the amendment application are not to be considered while deciding amendment application. So also plea of limitation being a mixed question of law and facts, it would not be desirable to express any opinion on the merits of the same at this stage. The same will have to be considered at the time of trial. 10. When the amendment in the plaint has already been allowed by the learned trial Court incorporating the change in boundaries and the same changes are sought in the said sale deed, it would be appropriate to allow the said amendment in respect of rectification of the said sale deed also, keeping the point of limitation open. The said amendment would also not relate back to the date of filing of the pleading, so also the date of the addition of the party should be construed as the date on which the application for the amendment is filed and the same also would not relate back to the date of filing of the suit. 11. As such keeping the point of limitation open, and that the amendment sought would not relate back to the filing of the suit and it will be open for the parties to contest the said matter on merits, the amendment is allowed. Resultantly, Exh.30 is allowed in totality subject 5 to the payment of costs by the petitioner to the respondents which is quantified at Rs.5,000/-. 12. Rule is made absolute in above terms with no order as to costs. ( S.V. GANGAPURWALA, J.) (vvr/5025.09wp)