Bombay High Court
GAYATRI BUILDERS AND DEVELOPERS AND ANRversusAKBAR ISMAIL SHAIKH AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- N JAMADAR
Holding
The amendment is permissible and the limitation issue may be decided at the final disposal of the suit.
Summary
The petitioners, Gayatri Builders, challenged a May 9, 2024 order of the Civil Judge, Senior Division, Nashik that allowed the respondents to amend their plaint to include a prayer that any compensation arising from acquisition of the suit property would not be payable to certain defendants. The petitioners argued that the limitation defence and the issue of acquisition had already been raised in their 2017 written statement, making a later amendment filed on December 2, 2022 impermissible. The Court observed that the amendment was merely consequential to the primary relief of specific performance and did not materially alter the nature of the suit. Relying on the Supreme Court’s decision in Ragu Thilak D. John v. S. Rayappan, the Court held that the limitation question could remain open for determination at the final disposal of the suit. Consequently, the writ petition was disposed, leaving the limitation issue alive and permitting an appeal under Section 105 of the CPC if an adverse decree is passed.
Issues considered
- Whether the trial court erred in permitting the amendment of the plaint after the limitation defence had already been raised.
- Whether the bar of limitation can be kept open for adjudication at the final disposal of the suit.
Legislation cited
- Code of Civil Procedure, 1908 — s. 105
Subjects
- amendment of plaint
- limitation defence
- specific performance
- compensation
- Civil Procedure Code
- Section 105
- writ petition
Judgment
2026:BHC-AS:1390
33 wp 525 of 2026.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.525 OF 2026
Gayatri Builders & Developers and Ors. ... Petitioners
versus
Akbar Ismail Shaikh and Ors. … Respondents
Mr. G.S.Godbole, Sr. Advocate i/by Mr. Sumit Kothari, for Petitioners.
Ms. S.S.Jadhav, AGP for State.
CORAM: N.J.JAMADAR, J.
DATE : 13 JANUARY 2026
P.C.
1. Heard the learned Counsel for the parties.
2. The challenge in this Petition is to an order dated 9 May 2024 passed
by the learned Civil Judge, Sr. Division, Nashik, on an application (Exh.93)
preferred by the Respondents – Plaintiffs for amendment in the plaint, which
came to be allowed. By the proposed amendment the Plaintiffs sought to add
a prayer that, in the event the suit property is acquired, the compensation
shall not be paid to the Defendant Nos.1 to 5.
3. Mr. Godbole, learned Senior Advocate for the Petitioners, submitted
that the Defendants – Petitioners have filed written statement in the year 2017
and in the said written statement, contentions regarding the bar of limitation
and acquisition of the subject property were raised and yet the amendment
application came to be filed on 2 December 2022. Therefore, the trial Court
could not have allowed the application for amendment.
SSP 1/2
33 wp 525 of 2026.doc
4. The proposed amendment, prima facie, appears to be essentially
consequential to the primary relief of specific performance of the contract in
respect of the suit property. It does not appear that the proposed amendment
would materially alter the nature of the suit. In any event, in view of the
decision of the Supreme Court in the case of Ragu Thilak D. John V/s. S.
Rayappan and Ors,1 the issue of bar of limitation can be kept open for
adjudication at the time of final disposal of the suit.
5. The Writ Petition, thus, stands disposed, keeping open the issue of
limitation and the right of the Defendants to challenge the legality, propriety
and correctness of the impugned order in the appeal which may be preferred
in the event the decree is passed against the Petitioners, as provided under
Section 105 of the Code of Civil Procedure, 1908.
( N.J.JAMADAR, J. )
1 (2001) 2 SCC 472
SSP 2/2
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 14/01/2026 11:30:14
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