1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 834 OF 2010 (Omprakash Tikamdas Gandhi vs. Rajkumar Tulshiram Rathi) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 10, 2010. Heard Shri Saboo, learned counsel for the petitioner and Shri Kilor, learned counsel for the respondent. The learned counsel points out that in Special Civil Suit No. 8 of 2000 filed by the petitioner for recovery of certain amounts outstanding from the respondent – defendant, a counter claim for Rs.36,000/- was made. Thereafter after about 8 years, giving reason of perusal of accounts/ registers for the year 1996-97 and 1997-98, the respondent – defendant moved an application for amendment of counter claim and for amendment of written statement contending that after adjusting his counter claim, amount needed to be increased to Rs.6,27,785.95. Accordingly, the amendment was sought to recover that amount and similar amendment was also sought in written statement. Shri Saboo, learned counsel contends that the documents are of respondent – defendant and in his 2 custody. It is alleged that the perusal cannot give rise to fresh cause of action and in any case, increase in amount of counter claim from Rs.36,000/- to Rs.6,27,785.95 is unwarranted. He points out that such increase is much after the expiry of statutory period of limitation and hence a suit for recovery of that amount is time barred. He, therefore, states that counter claim and also corresponding amendment to written statement as sought for is, therefore, time barred. He relies upon the judgment of the Hon'ble Apex Court in the case of Pankaja vs. Yellapa, reported at 2004 SC 4102, to urge that issue of limitation can be left open only when there is some dispute about the question or cause of action. According to him, in present situation, there is no such dispute and hence the amendment as allowed is time barred and there was no question of leaving the issue of limitation open. Shri Kilor, learned counsel, on the other hand, argues that the respondent – defendant has clearly pointed out that in relevant records with it for the year 1996-97 and 1997-98, the petitioner – plaintiff has made certain endorsements and the amount of counter claim has been increased because of those endorsements. He states that thus the claim is being made on the basis of the registers which are within the knowledge of the petitioner – plaintiff and the relevant entries are in his hand writing. It is not necessary for this Court to delve 3 more into this controversy. The facts show that a suit for recovery of money has been filed by the petitioner and in it counter claim was already made. The amendment only increases the amount in that counter claim. The question whether the increase as sought is correct or not, pertains to merits of the amendment and cannot be gone into at this stage. The increase is sought on account of alleged entries in registers with defendant by the plaintiff. Thus, those entries could have been put to the petitioner – plaintiff by the defendant even during his cross examination . The petitioner – plaintiff has been given advance notice of those entries and contents of registers. The trial Court has left the question of limitation open. It is, therefore, clear that the contention of Shri Saboo, on the ground of limitation cannot be considered at this stage. No prejudice is caused to the petitioner – plaintiff. Use of discretion by the trial Court is, therefore, neither perverse nor erroneous. Even if it is presumed that hike in amount of counter claim is erroneous, the amendment to written statement on that count cannot be stated to be uncalled for. Hence, without observing more on merits of the matter, I find that no interference is called for. Writ Petition is dismissed. No order as to costs. JUDGE *GS.