J.B.PARDIWALA, J.

( 1. ) THE appellants have preferred this Appeal under clause 15 of the Letters Patent challenging the judgment and order dated 23rd August 2010 passed by the learned Single Judge in Special Civil Application No.11627/2008, whereby the learned Single Judge rejected the petition.

( 2. ) BRIEF facts relevant for the purpose of deciding this Appeal can be summarised as under:- Appellants are the original petitioners (original plaintiffs) of Regular Civil Suit No.184/2003 filed in the Court of 10th Civil Judge (S.D.), Surat. The suit has been preferred for declaration and permanent injunction.

In the said Suit, the appellants preferred application Exh.41 for amendment of the plaint, by which a declaration was sought from the Civil Court to quash and set-aside the sale deed dated 21st July 1993 and further declaration to treat the said sale deed as null and void being illegal.

( 3. ) IT appears that the said application Exh.41 was partly allowed by the learned Civil Judge. While partly allowing the amendment, the relief as prayed for in clause 1(A) was rejected. The part of the amendment which the trial Court refused was on the ground that the suit was filed for declaration and permanent injunction, while the amendment at a later stage was with regard to a challenge to the legality and validity of the sale deed dated 21st July 1993. In the opinion of the learned Civil Judge, if such amendment is permitted and if the plaintiffs at a later stage are allowed to challenge the sale deed dated 21st July 1993, then it would change the entire nature of the suit. The Civil Judge was also prima facie of the view that the challenge to the sale deed was time-barred inasmuch as the application for amendment was preferred in the year 2006. Accordingly, the learned Civil Judge thought fit to reject the application Exh.41 in part.

( 4. ) AGGRIEVED by the said order passed by the learned Civil Judge, the appellants (original plaintiffs) preferred Special Civil Application No.11627/2008. The learned Single Judge, while rejecting the petition, came to the conclusion that the order passed by the Civil Judge was just and proper and no error much less an error of law was committed by the learned Civil Judge in passing the order below application Exh.41. In taking this view, the learned Single Judge noticed the following aspects:-

(a) In the opinion of the learned Single Judge, the amendment application preferred by the appellants (original plaintiffs) to replace paragraph 2 of the plaint would not only affect the entire nature of the suit but also the cause of action and certain admitted pleadings.

(b) The learned Single Judge also noticed that prima facie on the face of the record the challenge to the sale deed was time-barred. The sale deed was executed on 21st July 1993. On 17th May 2003 when the suit was preferred, there was no challenge to this particular sale deed and the same came to be challenged only by way of amendment application preferred on 11th June 2006.

(c) In the opinion of the learned Single Judge the sale deed ought to have been challenged within a period of three years, which has expired admittedly on the date of filing of application for amendment.

(d) Learned Single Judge also took notice of the fact that the appellants (original plaintiffs) have not acted with due diligence. At the time of filing the suit the appellants had produced one document Exh.3/1, which is a 7/12 extract of revenue record which reveals mutation entry No.774 regarding the transaction of the sale deed dated 21st July 1993. This is atleast evident of the fact that when the suit was preferred the appellants (original plaintiffs) were within the knowledge of the sale deed, which they proposed to challenge after a period of three years from the date of filing of the suit.

(e) Learned Single Judge also took notice of the fact that the appellants (original plaintiffs) were also aware about the notice under Section 135(D) of the Bombay Land Reven