Advocates:
['SHAILENDRA S KANETKAR', 'PANKAJ JAGANNATH DAS', '', 'RES TO', 'E', 'R NO', 'PRADEEP J THORAT']

9 wp 11398-2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 11398 OF 2019

Narayan Mahadu Vavle & Anr.

.... Petitioners

vs

Shri Laxman Tulshiram Vavle

Since deceased through legal heirs and Ors.

.... Respondents

WITH

WRIT PETITION NO. 11399 OF 2019

Shri Milind Shripad Bendre

.... Petitioner

vs

Shri Laxman Tulshiram Vavle

Since deceased through legal heirs Ors.

.... Respondents

-------------------

Mr. Shailendra S. Kanetkar, for the Petitioners.

Mr. Pankaj J. Das, for Respondent Nos.1A to 1C and 1E.

Ms. Nazia Shaikh i/b. Mr. Pradeep J. Thorat, for Respondent No.28.

-------------------

CORAM :MADHAV J. JAMDAR, J.

DATE : 5^th AUGUST, 2021

P.C. :

.

Heard Mr. Shailendra S. Kanetkar, learned Advocate appearing

for the petitioners, Mr. Pankaj J. Das, learned Advocate for

respondent Nos.1A to 1C and 1E and Ms. Nazia Shaikh, learned

Advocate for respondent No.28.

2.

The petitioners in Writ Petition No.11398 of 2019 are original

mp 1/9

9 wp 11398-2019

defendant Nos.9 and 10 in Special Civil Suit No.385 of 1990. The

petitioner in Civil Writ Petition No.11399 of 2019 is original

defendant No.18 in said suit. In both these Writ Petitions, Order

dated 20^th June 2019 passed by the learned Civil Judge Senior

Division, Pune below Exh.401 in Special Civil Suit No.385 of 1990 is

challenged. It is to be noted that other defendants have not

challenged the impugned order. By impugned order, the said

application bearing Exh.401 filed by the plaintiff seeking amendment

in the plaint was allowed. By said application, prayer clause 1(a) in

para No.18 was proposed to be added in addition to the existing

prayer clauses. By the proposed amendment, prayer to the effect that

the defendants be directed to hand over actual and physical

possession of the suit property to the plaintiff, was sought to be

added. The said application was allowed by the impugned order.

3.

Mr. Kanetkar, learned Advocate appearing for the petitioner

submitted that the suit is of year 1990 and issues were framed on 9^th

March 2009. Additional issue was framed on 27^th September 2016.

After issues were framed in 2009, affidavit-in-lieu of the

Examination-in-Chief of the plaintiff was filed on 7^th November 2014.

Plaintiff’s cross-examination was completed and three witnesses were

mp 2/9

9 wp 11398-2019

examined. He therefore, submitted that the amendment is very

belated amendment. He submitted that suit is filed for specific

performance of Agreement for Sale dated 3^rd February 1989. He

submitted that amendment application filed on 16^th November 2017

seeking relief of possession after about 28 years is belated and

barred by limitation. He further submitted that in any case, even if,

amendment is allowed the point of limitation be kept open. Ms. Nazia

Shaikh appearing for respondent No.28 adopted the submissions of

learned Advocate Mr. Kanetkar and submitted that the proposed

amendment is barred by limitation and therefore, impugned order be

quashed and set aside. However, it is to be noted that the respondent

No.28 has not challenged the impugned order.

4.

Mr. Das, learned Advocate appearing for respondent Nos.1A to

1C and 1E supported the impugned order. He submitted that as the

suit is for specific performance, the prayer regarding possession is

part and parcel of relief regarding specific performance and,

therefore, limitation cannot operate as bar for the proposed prayer.

5.

Perusal of the record shows that the original plaintiff-Laxman

Tulshiram Vavle filed Special Civil Suit No.385 of 1990 on 8^th March

1990. The said suit is for specific performance of Agreement of Sale

mp 3/9

9 wp 11398-201