Bombay High Court
RAFIQUE A RAUF KAUCHALIversusNATHU RAMJI MALUSARE AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The amendment of the plaint is permissible and the trial court's order rejecting it is set aside.
Summary
The petitioner sought to amend his plaint to include a claim for removal of an alleged encroachment and possession of land identified in Survey No.15-2B, which the trial court had rejected on the ground of delay and alleged limitation. The High Court examined whether the limitation bar under Article 65 of the Limitation Act and Order VI Rule 17 of the CPC precluded the amendment. Citing Supreme Court precedents, the Court held that a limitation bar is a factor, not an absolute bar, and that the amendment could be decided at trial. It found the trial judge had erred in pre‑emptively applying the limitation test and that no irretrievable prejudice would result to the defendant. Consequently, the Court allowed the amendment, quashed the trial court’s order, and directed the plaint to be amended within four weeks.
Issues considered
- Whether the amendment seeking relief for removal of encroachment and possession is barred by limitation under Article 65 of the Limitation Act.
- Whether Order VI Rule 17 of the CPC prevents amendment of the plaint in the circumstances.
- Whether the trial court erred in rejecting the amendment application on the basis of alleged delay.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VI Rule 17
- Limitation Act, 1963 — s. Article 65
Subjects
- amendment of plaint
- limitation
- possession
- encroachment
- civil procedure
- Order VI Rule 17
- Article 65
- High Court of Bombay
- writ petition
Judgment
7-WP7877-2025.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7877 OF 2025
Rafique A Rauf Kauchali ...Petitioner
Versus
Nathu Ramji Malusare And Ors …Respondents
Mr. C. G. Gavnekar, a/w Ashutosh Gavnekar and Rohit Parab,
for the Petitioner.
Mr. P. Ranjan a/w Santosh Salekar, i/b Halai & Co., for
Respondent No.2.
Mr. Vishal Golambade, a/w Harshadn Inamdar, for Respondent
Nos.3 to 5.
Ms. Mamta Srivastava, AGP for the State – Respondent Nos.6 to
SANTOSH 9.
SUBHASH
KULKARNI
Digitally signed by
SANTOSH SUBHASH
CORAM: N. J. JAMADAR, J.
KULKARNI
Date: 2026.08.20 DATED: 18th AUGUST, 2026
18:46:54 +0530
JUDGMENT:-
1. Heard the learned Counsel for the parties.
2. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
3. The challenge in this petition is to an order dated 28 th
January, 2025 passed by the learned Civil Judge, whereby an
application for amendment in the plaint seeking to incorporate
the relief of removal of encroachment and possession of the
premises over which Defendant No.2 has allegedly erected
unauthorized structure, came to be rejected, primarily on the
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ground that there was delay in seeking the amendment and the
Plaintiff had not satisfied the test of due diligence.
4. Initially, the Plaintiff instituted the suit seeking a
declaration that the Plaintiff has right of access over the land
described in paragraph 1 of the plaint to approach Mumbai-Goa
road and the consequential relief of injunction to restrain the
Defendants No.3 to 5 from causing obstruction to the said
access and also for a mandatory injunction to remove the
obstructions that might have been erected over the said access
road.
5. During the pendency of the suit, by an order dated 5 th
November, 2019, a Court Commissioner came to be appointed.
The Deputy Superintendent of Land Records, Mahad, carried
out survey and submitted a report alongwith the map which,
inter alia, indicated the alleged encroachment by the Defendant
No.2 over the property bearing Survey No.15-2B. Thereupon the
Plaintiff filed an application seeking amendment in the plaint so
as to incorporate the relief of removal of encroachment over the
land bearing Survey No.15-2B.
6. The learned Civil Judge was of the view that the interdict
contained in Order VI Rule 17 came into play and the Plaintiff
failed to satisfy the test of due diligence. The fact that in the
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earlier reports of Court Commission, purportedly carried out in
the year 2013, the same encroachment was indicated, weighed
with the learned Civil Judge, in observing that since there was
delay of 11 and ½ years in seeking the relief of removal of
encroachment, the relief sought to be claimed by way of
amendment appeared to be barred by law of limitation.
7. Ordinarily, when the relief sought to be claimed by way of
amendment is ex facie bar by the law of limitation, the Courts,
as a rule, decline to grant permission to amend the plaint to
incorporate such relief. However, it is not an absolute
proposition of law that whenever the bar of limitation is raised,
the Court is not empowered to allow the amendment. That is a
factor to be taken into account in determining the prayer for
amendment. A profitable reference in this context can be made
to the judgment of the Supreme Court in the case of L. J. Leach
and Company Limited and Another vs. Jardine Skinner and
Company1 wherein the following observations were made:
“17. It is no doubt true that courts would, as a rule, decline
to allow amendments, if a fresh suit on the amended claim
would be barred by limitation on the date of the application.
But that is a factor to be taken into account in exercise of the
discretion as to whether amendment should be ordered, and
does not affect the power of the court to order it, if that is
required in the interests of justice. In Charan Das v. Amir
Khan (1920 SCC OnLine PC 51) the Privy Council observed:
1 AIR 1957 SC 357.
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“…. That there was full power to make the amendment
cannot be disputed, and though such a power should
not as a rule be exercised where its effect is to take
away from a defendants a legal right which has accrued
to him by lapse of time, yet there are cases …. where
such considerations are outweighed by the special
circumstances of the case.”
Vide also Kisandas Rupchand v. Rachappa Vithoba Shilwant
(1909 SCC OnLine Bom. 84).”
8. The said position was highlighted by the Supreme Court in
the case of Life Insurance Corporation of India vs. Sanjeev
Builders Pvt. Ltd. and another,2.
9. In the case at hand, the prayer sought to be incorporated
by way of amendment is essentially for the recovery of
possession of the alleged encroached portion of Survey No.15-
2B, on the basis of title. In view of the provisions contained in
Article 65 of the Limitation Act, the period of limitation for
recovery of possession of immovable property on the basis of
title beings to run from the date the possession of the Defendant
becomes adverse.
10. At any rate, the question of limitation can be kept open for
adjudication at the trial. A profitable reference can be made to
the judgment of the Supreme Court in the case of Raghu Thilak
D. John V/s. S. Rayappan and Ors.3
2 2020 SCC OnLine SC 1128.
3 (2001) 2 SCC 472.
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11. In the case at hand, the learned Civil Judge has
misdirected himself in observing that, since the encroachment
was allegedly carried out prior to 11 and ½ years, the prayer
sought to be added by way of amendment was ex facie barred by
law of limitation. That question ought to have been left for
adjudication at the stage of final decision of the suit.
12. Since the amendment was sought pursuant to the report
of the Cadestal Surveyor which indicated alleged encroachment
by Defendant No.2, the interdict contained in the proviso to
Order VI Rule 17 of the Code may not be strictly attracted. In
any event, in order to determine all the questions in controversy
between the parties once and for all, the proposed amendment
appears necessary. There is no element of irretrievable prejudice
to the Defendant No.2 as the Defendant No.2 would have an
opportunity to contest the suit.
13. For the foregoing reasons, this Court is inclined to allow
the petition.
14. Hence, the following order:
: O R D E R:
(i) The petition stands allowed.
(ii) The impugned order stands quashed and set aside.
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(iii) The application for amendment stands allowed.
(iv) Necessary amendment be carried out within a period of
four weeks and amended copy of the plaint be served on
the Defendants.
(v) The Defendants are at liberty to file additional written
statement to the amended plaint within a period of one
month of the service of the amended copy of the plaint.
(vi) It is clarified that the observations are confined to test
the legality and propriety of the order rejecting the
application for amendment and the trial Court shall not
be influenced by any of the observations, including on
the aspect of limitation, at the stage of final adjudication
of the suit.
(vii) Rule made absolute in aforesaid terms.
No costs.
[N. J. JAMADAR, J.]
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