NARENDRA Vs. MAKHAMAL YEZDI IRANI

JUDGEMENT

(1.) The captioned petition is filed by the plaintiffs assailing the order of the learned Judge on an application filed in I.A.No.3, seeking amendment of the plaint. The learned Judge though has allowed the amendment application filed by the plaintiff, however, the Judge has indicated that the proposed amendment would not relate back to the date of institution of the suit. Feeling aggrieved by the said portion of the order, the plaintiff has filed the captioned petition.

(2.) Facts leading to the present case are; The present petitioner/plaintiff has instituted a suit seeking relief of possession based on title. Pending consideration of the suit, the plaintiff filed an application in I.A.No.3, seeking leave of the Court to seek relief of declaration of title by way of amendment. The defendant seems to have contested this application orally contending that, the relief of declaration is barred by limitation. The defendants placing reliance on the legal notice which is produced by the plaintiff contend that, the plaintiff cannot seek relief of declaration by way of amendment as it is barred by limitation. The petitioner/plaintiff contends that, the defendants have not disputed the plaintiff's title and the same can be gathered from this legal notice which is placed on record by the plaintiff.

(3.) In a suit for possession, based on the title, if the plaintiff intends to seek a relief of declaration, though the Courts are required to liberally allow the amendment and permit the plaintiff to seek relief of declaration, however, the plaintiff cannot insist that this amendment would relate back to the date of the filing of the suit. The defendant is contending that, the relief of declaration is barred by limitation. The burden would be on the defendant to substantiate as to how the plaintiff is not entitled to seek the relief of declaration on the ground of limitation. If the plaintiff is permitted to seek the relief of declaration by way of amendment, even if the defendants have not filed written statement to the original plaint, they are entitled to file a written statement to the limited extent to raise the plea of limitation. Whether the relief of declaration sought by the plaintiff by way of amendment is barred by limitation, is a disputed question of fact and needs evidence in that regard.