JUDGMENT - V.C. DAGA, J.:---Rule returnable forthwith. Respondents waive service. Heard finally with the consent of parties.

This revision petition is directed against the order dated 13th March, 2002 passed by the Civil Judge, Junior Division, Pernem, in Civil Miscellaneous Application No. 11 of 2002 in Regular Civil Suit No. 49 of 2000; whereby the trial Court allowed amendment to the plaint subject to costs.

FACTS-IN-BRIEF:

The facts in nutshell are as under:---

2. The respondents/original plaintiffs filed a suit for declaration and permanent injunction seeking declaration that the gift deed dated 7-11-1983 by which the defendant No. 1 had gifted the suit property in favour of the defendant No. 2 be declared null and void and also sought permanent injunction restraining the defendants from interfering with the suit property.

3. On being summoned, the defendants appeared and filed their written statement. The issues relevant to the pleadings were struck. The parties to the suit were asked to lead their rival evidence. The suit went for final hearing. While the matter was being heard finally an application for amendment to the plaint came to be filed claiming additional relief seeking restoration of possession of suit property.

4. No reply was filed to oppose application seeking amendment to the plaint. The aforesaid amendment was orally by the defendants at the time of hearing of the application on the ground that the relief sought in the proposed amendment was clearly barred by limitation and that the same is belated. It was further opposed on the ground that if the amendment was allowed to be introduced at such a late stage of the suit, then, the issue would be required to be framed and the matter will have to be set down for further evidence. This would result in protracting litigation. It was also urged that if the amendment was allowed, it would result in demolition of the right accrued in favour of the petitioners/original defendants because of omission to claim relief of possession of the suit property.

5. In rejoinder, the plaintiffs urged that the seeds of the amendment are already in the plaint and no now relief is being claimed and in the interest of justice the order should be maintained.

6. The trial Court after hearing the parties, was pleased to allow the amendment application vide its order dated 13th March, 2002. This order is the subject-matter of challenge in this revision filed under section 115 of the Civil Procedure Code.

PRELIMINARY OBJECTION:

7. At the outset, the learned Counsel appearing for the respondents raised a preliminary objection to the maintainability of the revision and contended that in view of the judgment of the Supreme Court in the case of (Prem Bakshi and others v. Dharam Dev and others)1, A.I.R. 2002 S.C.W. 140, the revision petition challenging the order allowing the amendment is not maintainable. In his submission, impunged order cannot be said to be an order having effect of deciding any case. In his submission this revision petition is liable to be dismissed at this stage giving an option to the petitioners to challenge the impugned order in the event they are ultimately required to carry appeal; if at all they suffer adverse decree in the suit.

8. In order to counter the above submission, the learned Counsel appearing for the petitioners pressed into service 3-Judges Bench judgment of the Apex Court in the case of (Shah Babulal Khimji v. Jayaben D. Kania and another)2, 1983(1) Bom.C.R. (S.C.)37 wherein the Apex Court relied upon the case of (Shanti Kumar R. Canji v. The Home Insurance Co. of New York)3, A.I.R. 1974 S.C. 1719: wherein the Apex Court was considering the effect of an order allowing amendment of the plaint. The question at issue was whether such an order would be 'judgment' within the meaning of Letters Patent. The Apex Court in the said judgment made following observations:---

"Where an amendment takes away from the defendant the defence of immunity from any liabil

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