1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 775 of 2008 1. Shri Kashinath Tima Gaude, major in age, married, service, 2. Shri Rohidas Govind Gaude, son of Govind Gaude, major in age, service, 3. Shri Madi Yeshwant Gaude (since deceased ) through legal heirs, 3(a) Smt. Audu Madi Gaude, aged 60 years, housewife, widow of Madi Gaude, 3(b) Shri Dilip Madi Gaude, son of Madi Gaude, aged 40 years. 3(c)Smt. Mala Dilip Gaude, w/o Dilip Gaude, aged 38 years, 3(d) Shri Mahesh Madi Gaude, son of Madi Gaude, aged 37 years, 3(e) Shri Anil Madi Gaude, son of Madi Gaude, aged 35 years, unmarried. 3(f) Kum. Mone @ Shanti Madi Gaude, daughter of Madi Gaude, aged 28 years. 3(g) Smt. Manik Gangaram Gaude, daughter of Madi Gaude, widow of Gangaram Gaude, major, 3(h) Kum. Sunanda Gangaram Gaude, daughter of Gangaram Gaude, aged 17 years, 3(i) Shri Nilesh Gangaram Gaude, 2 son of Gangaram Gaude, aged 13 years, 3(h ) and 3i through their guardian, 3(g) Manik Gaude, All residents of Dhavali, Ponda Goa. .... Petitioners V e r s u s 1. Shri Amarnath Vishnu Baht Dhavlikar, of full age, married, resident of Dhavalim, Ponda Goa. 2. Raj Developers, through Partners : 1.Smt. Pratibha Sandip Nigalye, 2. Shri Joseph Clive Siqueira, having office at Pai House, Ponda Goa. .... Respondents. Mr. S. D. Lotlikar, learned Senior Advocate for the appellants. Mr. R. Ramani, Advocate for the respondent no.1. Coram :- N. A. BRITTO, J. Date :- 12 th June, 2009. 3 ORAL ORDER : The challenge in this Writ Petition is to the order dated 23.7.2008 of the learned Civil Judge Junior Division, Ponda, to the extent it has rejected the application for amendment filed by the plaintiffs, in terms of para (A) and (J) of the schedule and prayer clause (a) of the application for amendment. 2. Heard Shri S.D. Lotlikar, learned Senior counsel on behalf of the petitioners and Shri R. Ramani, learned counsel on behalf of the respondent no.1. The petitioners are the plaintiffs in the said Civil Suit and it appears that there is a dispute between the plaintiffs and defendant no.1 in respect of the property which is known as GODDACHEM BOROD alias VARCONDEM. Claiming that the plaintiffs were the owners of the property and further claiming that they had noticed certain construction activities going on in portion surveyed under No. 24/2, the plaintiffs filed the suit for mandatory injunction to direct the defendants to demolish the construction/s and for permanent injunction. 4 3. The written statement was filed on or about 20.10.2001 and it appears that subsequently it was amended in the year 2007. The amendment application was filed by the plaintiffs on or about 23.6.2008, obviously, with some delay. In the written statement the defendant no.1 has pleaded that the suit was bad for non joinder of necessary parties namely M/s F.N. Associates, a partnership firm and the occupants shown in Form I & XIV and also the purchasers of plots by which the property was sold by various deeds. Therefore, it is obvious that the application was filed to overcome the objections taken by the defendants. There is no doubt that the application for amendment was not filed promptly, but it was filed to substitute the respondent no.2 by the said M/s. F. N. Associates and to add the plot holders to whom the property was subsequently sold. The learned Trial Court had taken note of certain decisions wherein it was held that application for amendment could not be rejected on the ground of delay alone in filing the same when the other party could be compensated with costs. Admittedly, at the stage it was filed evidence of the plaintiffs had not started though it is now submitted that two 5 witnesses have been examined on behalf of the plaintiffs. There can be no doubt that the application, as it involved the addition of parties had to be considered, as stated by the Apex Court in Alkapuri Cooperative Housing Society Ltd., Vs. Jayantibhai Naginbhai ( 2009) 3 SCC 467, a decision cited by the learned counsel Shri R. Ramani, not only under the provisions of Order 6, Rule 17, of CPC but also under the provisions of Order 1, Rule 10, of CPC. Learned Trial court has rejected the prayer for amendment/addition of the said proposed respondent nos. 3 to 16 on the ground of limitation. Shri Lotlikar, the learned Senior counsel on behalf of the petitioners, submits that the plea of limitation was a contentious issue, which could not be decided without trial as the prayer for mandatory injunction sought in the suit was in substance a prayer for restoration of possession of the suit property by removing the encroachments made and the period of limitation would be 12 years from the date of cause of action and not 3 years as wrongly assumed by the learned Trial Court. Learned counsel further submits that in any event it was for the proposed defendants particularly defendant nos. 3 to 16 after they 6 were joined as parties to set up the plea of limitation. Since the amendment application was filed after certain objections were taken on behalf of the defendants themselves and since prima facie, the application could not said to be time barred, in my view, the same ought to have been allowed by the learned Trial Court keeping the issue of limitation open to be decided at the time of trial. The amendment was certainly required to effectually decide the controversy raised by the plaintiffs. In case the amendment was not granted the suit of the plaintiff could have failed, as the parts of the property would remain in possession of proposed defendants. This is not to say that the plaintiffs are bound to succeed. That will be decided at the trial. The impugned order therefore is arbitrary. 4. Consequently, the petition succeeds. As a result, the application for amendment would now stands fully allowed. The amendment to be carried out within 30 days after the parties appear before the Trial Court. N. A. BRITTO, J. at*