(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 7273 of 2008 1. Sri Ganesh s/o. Ambadas Jalke, Age : 52 years, Occupation : Service, 2. Sri Sampat s/o. Ambadas Jalke, Age : 49 years, Occupation : Service, .. Petitioners Both r/o. Bhavani Road, Tuljapur, (Original Dist. Osmanabad. plaintiffs) versus 1. Shivaji s/o. Smanappa Pahelwan, Age : 72 years, Occupation : Business, R/o. Bhavani Road, Tuljapur, Dist. Osmanabad. 2. The Chief Officer, Municipal Council, .. Respondents Through Chief Officer at Tuljapur, (Original Dist. Osmanabad. defendants) .................. Mr. K.C. Sant, Advocate, for the petitioners. Mr. B.R. Sontakke Patil, Advocate, for respondent no.1. Mr. K.K. Kulkarni, Advocate, for respondent no.2. (2) .................. CORAM : B.R. GAVAI, J. DATE : 1ST JULY 2009. COURT’S ORDER : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioners have challenged the order dated 30th June 2008, passed by the learned IInd Joint Civil Judge (Junior Division), Tuljapur, below Exhibit 120 in Regular Civil Suit No. 101/2001, thereby rejecting the application filed by the present petitioners for amendment of the plaint. 3. The petitioners have filed a suit for permanent injunction against the defendant no.1, restraining him from making a new construction on the northern side of the earlier construction. Along with the suit, an application for temporary injunction was also filed. The same is rejected. 4. The respondent no.1 herein has also filed his written statement. After pleadings were complete, an application came to be filed by the present petitioners, so as to incorporate the pleading, that during the pendency of the suit, the respondent defendant no.1 had raised construction in violation of the easementary rights of the plaintiff. The said application is rejected. Hence, the present petition. 5. Mr. K.C. Sant, learned Counsel appearing for the petitioners, submits that the trial court grossly erred in rejecting the application for (3) amendment, inasmuch as, it does not change the nature of the suit. He further submits that the trial court ought to have allowed the application so as to avoid multiplicity of litigation. 6. Mr. B.R. Sontakke Patil, learned Counsel appearing for the respondent no.1, submits that by way of present amendment, the petitioners are seeking to raise a claim which is barred by limitation. He further submits that the trial court has rightly rejected the application as the proposed amendment changes the nature of the suit. 7. From the perusal of the record, it is clear that by way of proposed amendment, the petitioners are seeking to bring on record, the matter which pertains to subsequent events. It is the contention of the petitioners, that the defendant has raised the construction during the pendency of the suit. 8. In so far as the contention of the respondent no.1, that the claim is time barred, is concerned, it is settled law that at the stage of grant of amendment, merits of the matter cannot be gone into. In the event, the amendment is allowed, it is always permissible for respondent no.1 to raise all these grounds in additional written statement. 9. Since the proposed amendment pertains to the subsequent events and pertaining to the same suit property, I find that the trial court has erred in rejecting the application. In any case, in order to avoid multiplicity of litigation, the amendment was necessary. 10. In the result, the petition is allowed. (4) (i) The order dated 30th June 2008, passed by the learned IInd Joint Civil Judge (Junior Division), Tuljapur, below Exhibit 120 in Regular Civil Suit No. 101/2001, is quashed and set aside. The application Exhibit 120 in Regular Civil Suit No. 101/2001 is hereby allowed. (ii) Needless to state, that the respondents shall be at liberty to file additional written statement so as to meet the grounds which are sought to be brought on record by way of amendment. 11. Rule is made absolute in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs. ( B.R. GAVAI ) JUDGE ...................... bgp/7273wp