: 1 : 519-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 519 OF 2011 Mahaboobpasha Mahammad Desai .. Petitioner v/s. Abdulwahab Mahammad Desai .. Respondent ......... Mr. A.B. Borkar for the petitioner Mr. P.B. Sawant for the respondent ......... CORAM : R.Y.GANOO, J DATE : 8th SEPTEMBER,2011. P.C. : 1. Rule. 2. Rule made returnable forthwith. Learned advocate Mr. Sawant waives service of the notice. By consent, petition is taken up for hearing. 3. The respondent herein had filed R.C. Suit No.101 of 2009 in the Court of Civil Judge Junior Division, Kagal, Dist. Kolhapur for injunction. During the pendency of the suit, the respondent filed amendment application dated 16th September, 2010 at Exh.16 and wanted to add certain paragraphs in the plaint. That application was opposed by the petitioner. : 2 : 519-11-wp=.sxw 4. Learned Joint Civil Judge Junior Division, Kagal, Dist. Kolhapur by its judgment and order dated 9th November, 2010 granted the said application. Against this order dated 9th November, 2010, the petitioner defendant has filed the present Petition. I have heard learned advocates on both sides. The aforesaid suit came to be filed for seeking injunction against the defendant. In the plaint, no doubt, it is stated that sum of Rs. 5,000/­ were borrowed by the respondent from the petitioner in the year 1979 and had executed a registered mortgage and the time to repay the loan was 15 years. According to the respondent, said loan was repaid on 15th March, 1997 and despite the said payment, the petitioner did not execute re­conveyance deed in favour of the respondent, though it was demanded from time to time. This suit came to be filed on or about 10th July, 2009. Thereafter, the amendment application is moved at Exh.16 and if one peruses the text of the amendment sought, it is clearly indicative that the respondent wants re­conveyance of the property in his favour on the ground that a sum of Rs.5,000/­ was already paid. It appears that by way of abundant caution, the respondent has shown his intention to pay Rs.5,000/­ at the time of filing application on the ground that the petitioner claims that he has not received any amount in the year 1994. : 3 : 519-11-wp=.sxw 5. After having heard learned Counsel on both sides, I am inclined to observe that the amendment sought has effect of changing nature of the suit. The present suit came to be filed for injunction simplicitor and thereafter, the amendment is sought so as to seek re­conveyance. It is also noticed that if at all, the amendment is granted keeping away the point of cause of action, the said amendment would result into bring on record, the dispute which is barred by the period of limitation. In my view, the learned Judge has failed to appreciate this aspect of the matter and that is how he has heard and delivered the judgment dated 9th November, 2010. Hence, the impugned order dated 9th November, 2010 required to be set aside. At the same time, the respondent can be granted liberty to file a separate suit for re­conveyance. Needless to mention that grant of liberty by this Court as aforesaid, does not mean that this Court has condoned the delay in filing the suit. 6. Petition stand disposed of in the above terms with no order as to costs. (R.Y.GANOO, J.)