SRJ 1 wp-8465-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8465 OF 2007 Smt. Mangala M. Shembekar & Others .. Petitioners. V/s. Darpan CHS Ltd,. & Another .. Respondents. Mr. Indrajeet R. Kulkarni, for Petitioners. Mr P.D.Dalvi, for Respondents. CORAM :A.S.OKA,J. DATE :12th APRIL,2010 P.C.:- 1] Heard Learned Counsel appearing for the Petitioners. Petitioners are some of the Defendants in a suit filed by the 1st Respondent. The suit was dismissed. An appeal has been preferred by the 1st Respondent. During pendency of the appeal, an application for amendment of the Plaint was made by the 1st Respondent. By the impugned order, the said application has been allowed and the 1st Respondent has been permitted to incorporate the relief of specific performance by amending plaint. 2] The present Petition under article 227 of the Constitution of India for challenging the order dated 30th March, 2007 was filed by the Petitioners on 31st March, SRJ 2 wp-8465-07.sxw 2007. Thereafter, Petition was dismissed for non- prosecution and was restored on 28th July, 2009. The Petition was again dismissed for non-prosecution on 20th August, 2009 which has been restored today. It is not in dispute that amendment has already been carried out in terms of the impugned order and that is why an application for amendment of Writ Petition has been filed for incorporating a direction in the Petition for restoration of the Plaint to its original position. 3] The Learned Counsel appearing for the Petitioners submitted that while dismissing the suit, the Trial Court has recorded a clear findings that the prayer for specific performance at the instance of 1st Respondent was clearly barred by limitation. He submitted that while passing the impugned order, the learned District Judge has observed that the claim for specific performance was barred. He submitted that in view of settled law, the amendment which is specifically barred by limitation cannot be allowed. 4] I have given careful consideration to the submissions. In April, 2010, this Court is dealing with an order dated 30th March, 2007 passed by the Appellate Court by which an amendment of the plaint has been permitted. The amendment has already been carried out. While permitting the amendment, issue of bar of limitation has been expressly kept open. If on the date of filing the application for amendment, the claim for specific performance was barred by limitation, it is obvious that SRJ 3 wp-8465-07.sxw the Court will not grant the prayer for specific performance. Though period of more than three years has lapsed from the date of the impugned order, this Petition has remained pending at the stage of admission as the same was dismissed for non-prosecution on two occasion. The Petitioners can always file additional Written Statement to the amended plaint and raised a plea of bar of limitation. Therefore, at this stage, no interference is called for. Writ Petition is rejected. If the Petitioners have not filed additional Written Statement, they will be entitled to do so within a period of eight weeks from today. It will be open for the Petitioners to raise the issue of bar of limitation in the additional Written Statement. 5] The Appellate Court at appropriate stage is bound to consider the issue whether prayer for specific performance is barred by limitation. 6] Subject to what is observed above, Writ Petition is rejected. (A.S.OKA,J.)