SUGLABAI RAVAYYA JANGAM Vs. GURUSIDHYA BASAYYA JANGAM

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, is directed against the order passed by the 5th Additional District Judge, Solapur below Exhibit 29 in Civil Appeal No. 203 of 1990 dated 24-9-1993.

(2.) BRIEFLY stated, the respondent filed suit against the petitioners for permanent injunction. The said suit was decreed by the trial Court on 31-3-1990. Against the said decree the petitioners preferred an appeal before the District Court, Solapur, being Civil Appeal No. 203 of 1990. During the pendency of the said appeal the petitioners filed an application below Exhibit 29 praying for amendment of their written statement. The nature of amendment prayed by the petitioners was in effect for setting up a counter claim against the respondent original plaintiff. By the said amendment the petitioner prayed for declaration against the respondent original plaintiff that the petitioners have right of way from the suit property by easement of necessity and incidentally prayed for injunction. The Court below rejected the said application mainly on the ground that the amendment sought by the petitioners was barred by limitation. For recording this conclusion the Court has taken into account the fact that the decree passed by the trial Court was dated 31-3-1990 whereas the proposed amendment application was moved on 16-6-1993, viz. , after 3 years.

(3.) MR. Kumbhakoni, learned Counsel for the petitioners strenuously contends that the cause of action for the proposed amendment is a continuing one; and, therefore, the view taken by the Court below that the proposed amendment was barred by limitation is inappropriate.