ORDER
Abhay M. Naik, J.
1. This writ petition is directed against the order contained in Annexure P-1 whereby the proposed amendment has been denied by the learned Trial Judge on the ground of limitation.
2. The suit in question has been filed for declaration and perpetual injunction with respect to an immovable property. By the proposed amendment, the plaintiffs wanted to incorporate certain facts that the suit property was let out by the plaintiff to Shri Rajbahoran Singh on rent @ Rs. 150/- per month. Rajbahoran Singh vacated the suit premises but did not hand it over to the plaintiff. The defendant in collusion with Rajbahoran Singh, occupied the disputed property in May, 1991 in an illegal and unauthorized manner. Accordingly, the prayer for possession has also been sought to be incorporated.
3. The proposed amendment was contested by the defendant on the ground that prayer for possession in the year 2006 is barred by limitation since, the suit property is stated to have been occupied by the defendant in May, 1991. Learned Trial Judge did not allow to incorporate the amendment on the ground that the prayer for possession has become barred by limitation.
4. Shri Greeshm Jain, learned Counsel for the petitioner contended that the plaintiff was not aware of the illegal occupation of the disputed premises by the defendant at the time of institution of the suit. He contended that the tenant handed it over to the defendants behind back of the plaintiff. Thus, it cannot be said ex facie that the plaintiff was aware of the forcible occupation of the disputed property by the defendants in May, 1991. This would obviously be the subject matter of the evidence. In view of this, the plaintiff may be allowed to make the amendment subject to the plea of limitation to be raised by the defendants. I derive support from the Apex Court decision in the case of L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. reported as . It has been held that:
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.
Hon’ble Supreme Court of India has relied upon the observation of the Privy Council decision in the case of Charan Das v. Amir Khan reported as AIR 1921 SC 50, which reads as under:
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 the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case.
5. In the present case, the plaintiff has averred that the disputed premises was let out by him to Rajbahoran Singh who behind the formers back delivered the possession to the defendants in an illegal and unauthorized manner. Thus, the plaintiff cannot be admittedly said to be aware of the date of occupation of the disputed premises by the defendants. This will have to be established by the parties during evidence. In view of this, the circumstances of the case required that the plaintiff may be permitted to make the amendment and the defendant may also take a plea of limitation. Both the parties may be given opportunity to lead evidence and he defendants also shall have full opportunity to dislodge plaintiff from his claim for possession. Shri Saxena relied upon the decision of the Apex Court in the case of Radhika Devi v. Bajrangi Singh and Ors. reported as to contend that the proposed amendment being beyond the period of limitation is not liable to be allowed. It may be observed that the case of Radhika Devi (supra), is of two Judges Bench whereas the case of L.J. Leach and Co. Ltd. (supra), was decided by four Judges Bench.
6. Considering this, I allow the writ petition. The impugned order rejecting the application for amendment contained in Annexure P-1 is hereby set aside. The application for amendment marked as Annexure P-3 is hereby allowed on cost of Rs. 1000/- (Payable to the defendants). Learned Trial Judge shall allow the plaintiff to incorporate the amendment and shall further give an opportunity to the defendant to make consequential amendment. Needless to say that learned Trial Judge, if required may raise additional issues including on the question of limitation and shall decide the case in accordance with law.
With this, the writ petition stands accordingly allowed with no order as to costs.