1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9352 OF 2009 Narayan Baba Khatate. .. Petitioner Vs Sitaram Tukaram Mirgal & Ors. .. Respondents -- Shri Sanskar Marathe i/by Shri Ajay Shinde for the Petitioner. Shri S.M. Railkar for the Respondents. -- CORAM : A.S.OKA, J. DATE : 29TH APRIL 2010 P.C: . On 9th April, 2010, the parties were put to notice that the Petition will be taken up for final disposal at the admission stage. The office noting shows that all the Respondents have been served and they are represented by the learned counsel appearing for the Respondents. 2. The Petitioner is the original Plaintiff and the Respondents are the Defendants. The Petitioner filed a suit for injunction for protecting his alleged possession of the suit premises described in Paragraphs 1 and 2 of the Plaint. The suit was contested by the Respondents by filing a Written Statement. It was contended that on 5th January, 1948, the Petitioner’s father and grand mother sold the suit property by a registered sale deed in favour of the father of the Respondents, one Tukaram Mirgal. It is stated 2 that the sale was for valuable consideration and, therefore, the father of the Respondents became the owner of the suit property. The suit was filed in the year 2006. The written statement was also filed in the year 2006. On 4th August, 2009, the present Petitioner made an application for amendment of the Plaint at Exhibit – 35. It was contended in the said application that in the Written Statement the Respondents have come out with the case that their father had purchased the property by a conveyance deed dated 5th January, 1948. It is stated that a copy of the sale deed was produced on record and after taking inspection, the application for amendment was moved. The 1st prayer in the application is for adding parties. The 2nd part of the amendment is for claiming possession from the 2nd and 3rd Respondents on the ground that they have carried out the construction of house on the suit property. A prayer was made for addition of a paragraph for contending that on 28th March, 2006, the Petitioner became aware of the Sale Deed dated 5th January, 1948 when he obtained a copy of the Sale Deed. A paragraph was sought to be added stating that the cause of action arose when the Petitioner became aware of the contents of the Sale Deed. Another prayer was made for amendment of the Valuation clause. By the impugned order, the learned Judge held that the amendment could have been prayed earlier as it is not possible to accept that the Petitioner was not aware of the facts which are stated in the text of the amendment. It was observed that the nature of the suit will change. 3. The learned counsel appearing for the Petitioner submitted 3 that the amendment was moved within few months from the date of filing of the suit and as the application for amendment was filed before the commencement of hearing, the Trial Court ought to have adopted a liberal approach. The learned counsel appearing for the Respondents submitted that the prayer for challenging the sale deed of the year 1948 was barred by law of limitation. He submitted that a suit for simplicitor for injunction cannot be converted into a suit for possession and, therefore, the nature of the suit will change by the proposed amendment. He, therefore, submitted that the impugned order passed by the Trial Court be confirmed. 4. The application for amendment was moved within a few months from the date of filing of the suit when the suit was at a preliminary stage. The amendment is proposed for dealing with the contention of the Respondents that their father had purchased the suit property by a registered conveyance dated 5th January, 1948. The second part of the amendment was for impleading parties who are alleged co-sharers of the Respondents. A prayer is sought to be made for incorporating the relief of removal of encroachment and possession. The suit filed by the Petitioner is based on title as the owner. The Petitioner wants to add certain averments dealing with the alleged acquisition of the property by the father of the Respondents. The Petitioner is not seeking to incorporate a prayer for challenging the sale deed of the year 1948. A prayer is sought for incorporating a relief of the removal of encroachment. There is no attempt to withdraw any admission. On the contrary, the amendment is necessary 4 for avoiding multiplicity of the proceedings. Amendment ought to have liberally allowed. Even if the amendment is allowed, all contentions of the Respondents as well as added Respondents regarding the maintainability of the suit or bar of limitation always remain open which can be agitated by them by filing Written Statement. 5. Hence, I pass the following order. (a) The impugned order is quashed and set aside. (b) The Application at Exhibit – 35 is allowed. (c) Amendment shall be carried out within a period of four weeks from the date on which the writ of this Court is received by the Trial Court. (d) It will be open for the Respondents to file additional written statement to the amended plaint within a period of eight weeks from the date on which the amended plaint is served to them. (e) All contentions of the Respondents as well as added Defendants on merits of the suit are expressly kept open. (f) The Petition is allowed in above terms. (A.S.OKA, J)