MINAKSHI SURESH GUJAR Vs. BALAJI RAJU GUJAR

JUDGEMENT

(1.) This is a writ petition under Article 227 of the Constitution of India challenging order dtd. 22/1/2018 allowing amendment to incorporate relief of possession in a suit for injunction.

(2.) Learned advocate for the petitioners relying on statements made in the writ statement filed on 2/12/1999 submitted that the plaintiff was made aware of denial of his ownership by filing written statement in the year 1999. Therefore, it was obligatory for the plaintiff to amend the suit within twelve years from the date of filing of the written statement; however, the plaintiff filed application for amendment on 16/12/2017 which is ex facie barred by limitation. In support of his submissions, he relied on the judgments of the Apex Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors . reported in AIR 1957 SC 363 and L.C. Hanumanthappa (since deceased) represented by his legal representatives v. H.B. Shivakumar reported in (2016) 1 SCC 332.

(3.) Per contra, learned advocate for the plaintiff relying on the judgments in Raghu Thilak D. John v. S. Rayappan & Ors ., (2001) 2 SCC 472; Pankaja & Anr. v. Yallappa & Ors., (2004) 6 SCC 415; Mahila Ramkalidevi and Ors. v. Nandaram & Ors., (2015) 13 SCC 132; and Mohinder Kumar Mehra v. Rooprani Mehra, (2018) 2 SCC 132 submitted that whether amendment is barred by limitation or not is an arguable question which needs to be decided by the Trial Court at the time of final hearing and, therefore, the Trial Court was within its power to allow the amendment. According to him, the plea raised being alternative plea, the Trial Court has rightly allowed the amendment.