Point of Law: Amendment of plaint - Suit for injunction - Delay of 8 years in seeking amendment based on document - Relief seeking title alters nature of original suit for injunction - Not permissible.

JUDGMENT:

Heard Mr. Shah, learned counsel appearing for the petitioners and Mr. Kulkarni, learned counsel appearing for the respondents.

2. By the present Writ Petition, the petitioners have prayed for following reliefs:-

"(B) After calling for the records and proceedings from the Court of learned Civil Judge, Junior Division, Madha in respect of the Regular Civil Suit No. 22/2008, this Hon'ble Court may be pleased to examine the legality, validity and/or propriety of the impugned Judgments and Orders dated 17.11.2016 passed by the learned Civil Judge, Junior Division, Madha in respect of Regular Civil Suit no.22/2008 below Exhibit 35 and 39;

(c) After examining the legality, validity and/or propriety of the same, this Hon'ble Court may be pleased to quash and set aside the separate impugned Judgment and Orders dated 17.11.2016 passed by the learned Civil Judge, Junior Division, Madha and further be pleased to reject the applications below Exh. 35 and 39 preferred in the Regular Civil Suit No. 22/2008."

3. Petitioners are aggrieved by the twin orders both dated 17.11.2016 passed by the Civil Judge, Junior Division, Madha in two applications namely Exh. 35 and Exh. 39 filed by the respondents in Regular Civil Suit No. 22 of 2008.

4. Briefly stated, the facts are as under:-

4.1 Petitioners are the original defendants and respondents are the legal heirs of the original plaintiff. The suit property for which entitlement is claimed by the plaintiffs is Gat No. 139 admeasuring 0.69 acres situated in Village Chandaj, Taluka Madha, District Solapur. The original plaintiff i.e respondent herein filed Regular Civil Suit No. 22 of 2008 against the defendants for permanent injunction in respect of the suit property. The original plaintiff expired on 16.04.2015. His legal heirs are the present respondents.

4.2 Respondents i.e plaintiffs filed application Exh. 35 stating that original defendant No. 1 had expired on 27.03.2014 and his legal heirs (present petitioners) were required to be brought on record. Petitioners objected to this application on the ground of maintainability. Respondents - plaintiffs thereafter filed an application Exh. 39 for seeking amendment of the suit plaint. This Application was filed on 25.10.2016. The petitioners objected to the proposed amendment application on the ground of maintainability and limitation, inter alia, contending that the proposed amendment if allowed would change the nature of the suit and a completely different relief would be introduced and granted by the Court. On the aspect of limitation, it was contended that the cause of action to seek the relief had arisen in 2008 immediately on filing the written statement and the application was filed after a period of 8 years.

4.3 The Trial Court allowed both the aforesaid applications Exh. 35 and Exh. 39 by two separate orders which are annexed as “Exh. J” and “Exh. K” to the paper book.

5. Mr. Shah, learned counsel appearing for the petitioners has assailed both the orders in the present writ petition. In respect of the order below Exh. 35, it is submitted that the same was filed beyond limitation after a period of almost 2 years and 3 months and therefore not maintainable. He submitted that in the year 2016, the respondents had filed a similar application Exh. 26 to implead the legal heirs of the deceased original plaintiff. That application was allowed even though it was filed beyond the period of 90 days there was a delay of 10 months. The present application has been delayed by more than 2 years and 3 months. Hence, on the ground of limitation, the present application was required to be dismissed rather than allowed by the trial Court.

6. In respect of Application under Exh. 39, Mr. Shah contended that the petitioners (defendants) had filed written statement dated 07.08.2008, inter alia, denying the right of the plaintiff as the owner of the suit property. He submitted that as a complete afterthought after reading the written statement, respondents filed a