An amendment to pleadings should be allowed if it is necessary for proper adjudication, bona fide, does not cause irreparable prejudice, avoids injustice or multiple litigation, does not change the nature of the case, and does not result in a fresh suit being barred by limitation. The power of review is limited and can only be exercised on specified grounds.

JUDGMENT

1. Rule. Rule made returnable forthwith. By consent of parties, the petition is heard finally.

2. The petition is fled by the original defendants, who are aggrieved and dissatisfed by the judgment and order passed by the Ad-hoc District Judge-8, Pune on 10/01/2020 below Exh.33, under which the Appeal fled by the plaintiff is allowed and the order passed by the trial Court in Misc.Civil Application No.95 of 2012 is set aside.

3. The genesis of the dispute lie in a property situated at Sangvi, Tal.Haveli, Dist. Pune. The plaintiffs fled Regular Civil Suit No.60 of 1988 in the Court Civil Judge, Senior Division, Pune against the defendants, for permanent injunction and for restraining the defendants from selling the suit property, which was claimed to be the ancestral property.

During the pendency of the suit, on 25/07/2012, an application was fled under Order 6 Rule 17 of the CPC in which it was pleaded that the suit property is a joint family property and the plaintiffs and the defendants have equal share therein, as there is no separate partition effected. But, since the defendants were in an attempt to dispose of the property, so as to deprive the plaintiffs of their share, the plaintiffs sought the following amendment in the pleading;

"That plaintiff has got share in the suit property mentioned 1/2 in Schedule-I in Para No.5 of the suit property. There is no separate partition between the plaintiff and defendant. Therefore, the plaintiff share be separated from the defendant"

Accordingly the prayer clause was also sought to be amended by inserting the following,

"The share of the plaintiff be separated from the 1/2 defendants and defendants may kindly directed to demarked the suit property and to hand over the possession of the same to the plaintiff and if the fail to do so this Hon'ble court may be please to appoint Commissioner to demarked the property and handover the share and possession of the same be 1/2 directed to give to the plaintiff."

4. The defendants opposed the amendment on the ground that it is hopelessly time barred under the provisions of the Limitation Act, since the suit for partition ought to have been brought within 12 years from the date of violation of plaintiffs' alleged share in the suit property. It was pleaded that the 1/2 nature of the suit will undergo a change and the defendants will suffer irreparable loss, which cannot be compensated in terms of money. It was prayed that the application be rejected.

5. The 7th Joint Civil Judge, J.D., Pune, by order dtd. 03/09/2012, allowed the application by recording that the suit is fled for perpetual injunction and by way of amendment, plaintiff seek to insert a prayer for partition and since, admittedly the property is joint family property, the amendment deserve to be allowed, in order to avoid multiplicity of the proceedings and the proposed amendment do not change the real controversy between the parties.

6. Being aggrieved by the said order, Miscellaneous Civil Application No.95 of 2012 was fled by the defendants, by invoking Sec. 114 of the CPC in form of power of review. It was pleaded that the amendment was allowed after 24 years of fling of the suit and it ought to have been rejected and if at all the amendment of the pleadings is to be allowed, then the amendment ought to have been deemed to be incorporated on the day of bringing the application, thus keeping the right of the defendants to challenge the suit on the ground of limitation.

On 03/10/2013, the learned Judge allowed the review application, which resultantly amounted to rejection of the amendment. While exercising the power of review, the learned Judge found support in the decision of the Hon'ble Supreme Court in case of Pirgonda Hongonda Patil Vs.Kalgonda Shidgonda Patil and Ors. AIR 1957 SC 363 wherein the proposition of law had been laid to the effect that when the application is fled seeking an amendment, if the fresh suit on the amended plaint is barred by limitation, the a