1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1944 OF 2009 Laxman s/o Umaji Avad Petitioner Versus Shantabai w/o Kerba Ballad and others Respondents Mr.V.M.Maney, advocate for the petitioner. Mr.A.R.Nikam, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 06th April, 2010. P.C.: 1 The trial Court, in view of the order passed on 13.01.2009, permitted plaintiff Respondent No.1 herein to amend the plaint. 2 Suit is presented by the plaintiff claiming decree in respect of recovery of possession of landed property. Initially, plaint was presented on 04.11.2004. Plaintiff requested for grant of decree in respect of declaration that the registered sale deed executed on 17.06.1993 be declared as null and void and not binding on the rights of plaintiff. Suit came to be dismissed on 05.04.2006. Plaintiff preferred an appeal, being Regular Civil Appeal No.55/2006, raising exception to the judgment and decree passed by the trial Court. Appeal was allowed by the first appellate Court and matter came to be remitted back for reconsideration by the trial Court in view of judgment and decree passed by the first appellate Court on 28.08.2007. 3 After remand of the matter by first appellate Court, original 2 plaintiff – Respondent No.1 herein presented an application seeking amendment to the plaint. Plaintiff proposes to amend the prayer contained in para (ii) and wants to seek cancellation of registered sale deed executed on 17.06.1993. The trial Court has allowed the application for amendment in view of the order passed on 13.01.2009 and said order passed by trial Court is subject matter of challenge in this petition. 4 I have heard arguments advanced by learned Counsel for respective parties. Initially, plaintiff requested for grant of decree in respect of declaration as regards sale deed in question whereas, by way of proposed amendment, she wants to seek relief in respect of cancellation of sale deed. Admittedly, application for amendment was tendered on 25.09.2008. Plaintiff is seeking cancellation of an instrument registered on 17.06.1993. According to learned Counsel for petitioner – original defendant no.1, as a result of proposed amendment, the defence of limitation, which is available to defendants, would be defeated. The concern expressed by defendant no.1 – petitioner can be taken care of by directing the trial Court to frame issue in respect of limitation and consider same in accordance with law. The effect of amendment also shall not relate back to the suit initially filed, however, the amendment, as effected, shall be effective from the date of presentation of application i.e. 25.09.2008. 5 With the clarification as stated above, no interference is called for in the order passed by trial Court. Writ Petition stands rejected. Interim relief, granted earlier, shall stand vacated. (R.M.BORDE) JUDGE ******* adb/wp194409