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2024 DIGILAW 207 (BOM)

Rajaninath Shrikant v. Shree Kamakshi Saunsthan

2024-01-24

BHARAT P.DESHPANDE

body2024
JUDGMENT : Bharat P. Deshpande, J. Rule. Rule is made returnable forthwith. 2. Heard learned Counsel for the respective parties for final disposal at the stage of admission with consent. 3. Petitioners/plaintiffs prefer present petition thereby challenging the impugned order passed below Exh.73 dated 24.1.2023. By the said order, learned trial Court rejected the application filed for amendment of plaint. 4. Mr. Desai, learned counsel for the petitioners would submit that amendment application was filed by the plaintiffs to add prayer of mandatory injunction however, the same has been rejected on the ground that such amendment is time barred. 5. Plaintiffs filed a suit for permanent and temporary injunction claiming that there exists a property bearing survey no.526/1 in Shiroda wherein there are houses belonging to different persons including mother and mother in law of plaintiffs. After the death of Smt. Nanu Pandharinath Shirodkar, inventory proceedings were conducted. Plaintiff no.1 is adopted son of Pandharinath Venkatesh Shirodkar and Smt. Nanu Pandharinath Shirodkar and accordingly suit properties were allotted to the plaintiffs. It is further their case that somewhere in 1.1.2015, defendant installed a board in the suit property displaying that the project undertaken by Shree Kamashi Saunsthan, Shiroda for construction of building. Accordingly, plaintiffs collected documents from Town and Country Planning Department and other permissions. The Town and Country Planning Department handed over such documents vide letter dated 16.1.2025. On verifying it plaintiffs got knowledge that defendant has undertaken the constructions of the Agarshala in the property belonging to the plaintiffs. Somewhere on 2.2.2015, the petitioners noticed that the activities with regards to laying of the foundation stone was undertaken. When the plaintiffs contacted office of the defendant, there was no response. 6. It is case of the plaintiffs that defendant are not the owners in possession of the suit property and that defendant are not having any right or interest therein. Plaintiffs claimed that the suit property is in their possession and enjoyment since their ancestors time. It is their contention that defendant is carrying out construction activities in the suit property and when plaintiffs tried to stopped them, they were abused. Cause of action as shown in the plaint is 1.1.2015 when the board was installed by the defendant claiming about the development. Accordingly, prayer in the suit for grant of permanent injunction restraining the defendant from trespassing and doing any construction activities. 7. Cause of action as shown in the plaint is 1.1.2015 when the board was installed by the defendant claiming about the development. Accordingly, prayer in the suit for grant of permanent injunction restraining the defendant from trespassing and doing any construction activities. 7. Along with the plaint an application for temporary injunction was also filed. Defendant contested such application after filing their reply. By order dated 16.3.2017, learned Civil Judge rejected such application. Plaintiffs filed Misc. Civil Appeal before the District Court which was rejected vide order dated 27.11.2017. Plaintiffs then prefer a Writ Petition bearing No.314/2018 before this Court however, it was dismissed vide order dated 23.3.2018. Only thereafter an amendment application was filed on 18.12.2022 seeking amendment to the plaint by claiming mandatory injunction thereby removing illegal construction carried out by the defendant. It is admitted fact that construction is complete and that was during the pendency of the appeal before the District Court. 8. Mr Desai would submit that amendment is essential to decide the dispute effectively between the parties, since the trial has not commenced, amendment ought to have been allowed. He submits that question of limitation would not have been gone into as it is question of fact and law which has to be decided on framing of issues. He submits that development which took place after the suit was filed are required to be brought on record and therefore, such amendment is necessary for the purpose of deciding the dispute between the parties effectively. He would submit that even to avoid multiplicity of proceedings, such amendment is must. The learned trial Court committed error in the eyes of law and rejected it without considering the fact that such development was post the suit. He submits that subsequent events are necessarily to be allowed as no prejudice is going to cause to the respondent. 9. While relying on the decision of Bharat Bhushan Gupta v. Pratap Narain Verma and another (2022)8 SCC 333 ., Mr Desai would submit that though amendment speaks about mandatory injunction, in fact relief therein is for recovery of possession for which limitation cannot be considered only for three years. 10. 9. While relying on the decision of Bharat Bhushan Gupta v. Pratap Narain Verma and another (2022)8 SCC 333 ., Mr Desai would submit that though amendment speaks about mandatory injunction, in fact relief therein is for recovery of possession for which limitation cannot be considered only for three years. 10. Mr Desai then referred to the decision in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another, 2022 SCC Online 1128 wherein all the earlier decisions in connection with amendment of the pleadings are considered and summarised in paragraph 70. He submits that such conclusions are in fact in favour of the plaintiffs and same has been ignored by the learned trial Court. 11. Mr Desai then would placed reliance on Ganesh Prasad v. Rajeswar Prasad and others 2023 SCC Online Sc 256 to buttress his submission that plaintiff is entitled to deal even with inconsistent plea while seeking alternate relief. 12. Mr Desai would then placed reliance in the case of Rama Shanu Naik Dessai v. Director, Goa State Urban Development Agency and others. 2023 SCC Online Bom 900, wherein this Court while considering such decision in connection with amendment of pleadings observed that such power is discretionary and secondly Court has to consider and allow all necessary amendments to determine real question in controversy between the parties. While doing so the Court's primary duty is to decide whether such amendment is necessary to decide the real dispute between the parties. Similarly even if leave is granted to amend, it does not mean that the case proposed to be set out by amending the pleadings is accepted or that any legitimate objections like a limitation, res judicata, or issue estoppel are concluded against other side. All these observations will survive and other side will be at liberty to raise the same by filing additional pleadings in response to the amended plaint. 13. Mr Ramani, learned senior Counsel would submit that in normal circumstances, and when, matter is at pre-trial stage, normal rule is to allow the amendment so as to avoid multiplicity of the proceedings unless such amendment takes away the right of the defendants, allows the plaintiffs to withdraw the admission or proposed amendment is admittedly beyond the limitation. 14. 13. Mr Ramani, learned senior Counsel would submit that in normal circumstances, and when, matter is at pre-trial stage, normal rule is to allow the amendment so as to avoid multiplicity of the proceedings unless such amendment takes away the right of the defendants, allows the plaintiffs to withdraw the admission or proposed amendment is admittedly beyond the limitation. 14. Mr Ramani would submit that observations in the case of Life Insurance Company of India (supra) and more particularly the conclusion in paragraph 70 would attract to the matter in hand and if the claim raised by the parties by way of amendment is clearly barred by limitation, such amendment cannot be allowed. 15. Mr Ramani would then submit that it is admitted fact that the constructions carried out by the defendant was complete before 27.11.2017 i.e prior to dismissal of the appeal filed by the petition against the rejection of the injunction. However, proposed amendment is filed on 18.12.2022. He submits that even if it is considered that the construction was complete prior to 2017, period of three years to seek mandatory injunction or demolition of such structure comes to an end by November 2020. 16. Mr Ramani would then submit that first of all proposed amendment is also vague and there is no proper pleadings about dimensions of alleged encroachment. There are no proper pleadings with regards to measurements of the structure which is now existing in the suit plot. There is no sketch attached to the proposed amendment to show the extent of encroachment as required under the Bombay Amendment to the CPC in connection with the pleadings of the plaint and more specifically when the allegations are made regarding encroachment into the suit plot. He would submit that absence of such material, order passed by the trial Court needs no interference, as such relief of mandatory injunction is ex-facie barred. Mr Ramani would submit that even if plaintiffs wanted to file separate suit for removal of encroachment by way of mandatory injunction, the same would be barred by law of limitation. 17. In rejoinder, Mr. Desai would submit that limitation was extended by order of the Apex Court during COVID period and therefore, petitioner will be entitled to deduct such period if it is considered that the petitioners would require to file such amendment within time framed as provided for mandatory injunction. 18. 17. In rejoinder, Mr. Desai would submit that limitation was extended by order of the Apex Court during COVID period and therefore, petitioner will be entitled to deduct such period if it is considered that the petitioners would require to file such amendment within time framed as provided for mandatory injunction. 18. Rival contentions fall for determination are as under:- Some of the pleadings in the plaint are already discussed however, for the sake of repetition, it is necessary to note that suit filed by the plaintiffs in the year 2015 is simplictor for permanent injunction. Though in the plaint in paragraph 2 plaintiff disclosed about the property bearing survey no. 526/1 at Shiroda admeasuring 9200 sq. mts., it is admitted in paragraph 3 that in the suit property there are houses belonging to Shri Jaiju Shirodkar, Smt. Shrimatibai P. Shirodkar, Shri Uday Krishna Shirodkar, Shri Vithal Kotambikar and Shri Ashok Narvenkar. Smt. Shrimatibai P. Shirodkar is the mother of plaintiff no.1 and mother in law of plaintiff no.2. It is then claimed in paragraph 4 of the plaint that one Smt. Nanu Pandharinath Shirodkar died on 15.1.1964 and after her death an inventory proceedings bearing No. 3/1964 were instituted and suit property is listed in items no.3 which reads thus:- Property denominated Residential house, situated at Siroda, bounded on the East by the house of Moturem Bailadeira, on the West by those or Sacarama Sundorem, on the North by the hill and on the South by Road, described in the Land Registration Office under No.8320 of New series and enrolled in the Matriz under No.262, valued at 300/- Rupees". 19. Further in the plaint in paragraph 5, plaintiffs pleaded that plaintiff no.1 is adopted son of Shri Pandharinath Venkatesh Shirodkar and Smt. Nanu Pandharinath Shirodkar and that in the said inventory, suit property is allotted to plaintiff no.1. Similarly in paragraph 7, plaintiffs/petitioners claimed that house along with area belonging to late Shrimatibai P. Shirodkar is shown with red boundary lines to the survey plan of survey no. 526/1 and the same is produced with the plaint. Boundaries are disclosed and finally in paragraph 8 plaintiffs claimed that said described property is referred to as the suit property for the sake of convenience as the suit property and the house existing therein are shown in red colour boundary line, survey plan and annexed with the plaint. 526/1 and the same is produced with the plaint. Boundaries are disclosed and finally in paragraph 8 plaintiffs claimed that said described property is referred to as the suit property for the sake of convenience as the suit property and the house existing therein are shown in red colour boundary line, survey plan and annexed with the plaint. With these pleadings, prayer in the suit/plaint is only for permanent injunction restraining the defendants and their agents from trespassing into the suit property and interfering or dispossessing the plaintiffs from the suit property or carrying out any construction activities in the suit property. With this background and the fact that temporary injunction application filed along with the plaint was rejected by the trial Court vide order dated 16.3.2017 thereby holding that the plaintiffs failed to prima facie show that they are in possession of the suit property, application for amendment will have to be considered. 20. Plaintiffs filed appeal challenging order of rejection of injunction. Misc. Civil Application No.37/2017 was disposed of by the District Court vide its order dated 27.11.2017. By this order learned District Court confirmed the findings of the learned trial Court and observed that no case is made out for grant of injunction. Writ Petition filed before this Court was decided on 23.3.2018. By this order, this Court refused to interfere in the orders passed by both Courts below. Even Special Leave Petition filed before the Apex Court was rejected. 21. With these factual matrix of the matter, amendment application is filed by the plaintiffs before trial Court on 18.12.2022. Application for amendment and more specifically in paragraph no.1 discloses that during the pendency of the appeal before the District Court, defendant completed the construction work in the suit property. Admittedly the appeal was dismissed on 27.11.2017. Thus it means that construction was completed prior to that date. 22. Entire arguments of Mr Desai are to seek mandatory injunction asking defendant to demolish such construction and restore the land to its original condition. He submits that such amendment is necessary in the fact of the development which took placed after suit was filed and to avoid multiplicity of the proceedings. He therefore would submit that proposed amendment is very much necessary to decide the actual dispute between the parties. 23. He submits that such amendment is necessary in the fact of the development which took placed after suit was filed and to avoid multiplicity of the proceedings. He therefore would submit that proposed amendment is very much necessary to decide the actual dispute between the parties. 23. As against this, Mr Ramani while supporting the observation of the trial Court that such amendment is barred by limitation, would submit that since the construction was completed as admitted by the plaintiffs, prior to November 2017, any proceedings by way of mandatory injunction in the form of removal of encroachment ought to have been filed within three years. He submits that amendment is filed in December 2022 i.e after a period of more than two years from the lapse of limitation period of three years which is normally available for filing a suit for mandatory injunction. 24. As far as this contention is concerned, it is necessary to look into the pleadings in the plaint and the fact that no temporary injunction was granted to the plaintiffs by the Courts below. It cannot be said that limitation starts only after completion of the construction. Limitation shall began to run from the date of actual encroachment into the suit property. Suit was filed in the year 2015 wherein plaintiffs claimed that somewhere on 1.1.2015 defendant installed a board in the suit property thereby stating the project undertaken by defendant for construction of the building. Thus the date of knowledge of the plaintiffs about encroachment into the suit property has to be reckoned from 1.1.2015 when the defendant put up a board regarding their project for construction of the building. 25. Mr. Ramani rightly pointed out that the proposed amendment by way of adding paragraphs 19 (a) and (b) is again cryptic and does not give proper details. He rightly submitted that such amendment is not in consonance with provisions of CPC (Bombay amendment) in connection with encroachment as such averments must disclose the specific area encroached or dimensions of the construction carried out together with a sketch. 26. Perusal of proposed amendment 19 (a) and (b) along with the relevant prayers would go to show that plaintiffs are only trying to claim mandatory injunction for demolition of illegal structure carried out by the defendant in survey no.526/1. Admittedly there are no dimensions of such construction including area occupied therein, sketch showing such encroachment. 26. Perusal of proposed amendment 19 (a) and (b) along with the relevant prayers would go to show that plaintiffs are only trying to claim mandatory injunction for demolition of illegal structure carried out by the defendant in survey no.526/1. Admittedly there are no dimensions of such construction including area occupied therein, sketch showing such encroachment. Order 7, Rule 3 (Bombay amendment) reads thus:- "Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In case of encroachment, a sketch showing as approximately as possible location and extent of encroachment shall be filed along with plaint." (Emphasis supplied) 27. When the plaintiffs filed an amendment application with the proposed amendment to paragraphs 19(a) and (b) as found in paragraph 5 of the application for amendment, except submissions that plaintiffs is entitled for mandatory injunction thereby directing the defendant to demolish illegal structure in suit property bearing survey no. 526/1, there are no other particulars of such plea nor any sketch is attached to proposed amendment. 28. Simply asking prayer for mandatory injunction without proper and sufficient pleadings therein would not serve purpose of such amendment. Mr. Ramani is perfectly justified in pointing out the fact that the amendment has been drafted in a very casual and cursory manner and such amendment if allowed, would create more difficulty for the parties at the time of evidence since the plaintiffs failed to disclose the dimensions of the proposed encroachment. Trial Court will not be in a position to grant any such relief for want of specific particulars of encroachment allegedly carried out by the defendant, in case plaintiffs succeeds in doing so. 29. Be that as it may, the impugned order shows that the amendment has been rejected only because it is time barred. Learned Trial Court came to the conclusion that since construction was completed prior to disposal of the appeal, amendment applied in the year 2022 to seek mandatory injunction is clearly barred by law of limitation. 30. 29. Be that as it may, the impugned order shows that the amendment has been rejected only because it is time barred. Learned Trial Court came to the conclusion that since construction was completed prior to disposal of the appeal, amendment applied in the year 2022 to seek mandatory injunction is clearly barred by law of limitation. 30. Though learned trial Court has found that the date of commencement of the period of limitation would be from the date of completion of the construction in the suit property by the defendant, I respectfully disagree with such observation or conclusion and even the submission made by the learned counsel for the parties in this Court. Commencement of the period of limitation will have to be considered from the date of actual encroachment and that too within the knowledge of the plaintiff. There is no question of waiting for completion of such construction in an encroached area for the purpose of filing of the suit for mandatory injunction. In fact construction is not to be considered for computing the period but it has to be from the date of encroachment. Even if defendant encroaches into the property of the plaintiff with an intention to construct but fails to construct, plaintiff cannot wait for filing the suit and claim that the period of limitation would run only from the date of competition of the construction. 31. In this matter, neither the plaint nor the proposed amendment would show that plaintiffs have been dispossessed from the suit property. The aspect of encroachment is totally separate and cannot be equated with strict dispossession. The contention of Mr Desai that prayer for mandatory injunction could be considered as prayer for restoration of the possession. He submits that prayer is to restore the land to its original condition which means that the plaintiffs will be entitled to remove the encroachment and enjoyment of possession. However, here in this plaint, plaintiffs no where discloses the actual date of dispossession. For a suit to be filed for recovery of possession, based on title or based on earlier possession, time from which period began to run is the date of its dispossession or when the possession of the defendant becomes adverse to the plaintiffs. However, here in this plaint, plaintiffs no where discloses the actual date of dispossession. For a suit to be filed for recovery of possession, based on title or based on earlier possession, time from which period began to run is the date of its dispossession or when the possession of the defendant becomes adverse to the plaintiffs. Matter in hand will not fall in this category as there is no averments either in the plaint or in the proposed amendment about date of dispossession of the present plaintiffs. Entire case is in connection with possessory rights of the plaintiffs wherein defendant started some construction. Thus, it is primarily a case of encroachment. Therefore for removal of such encroachment, crucial date for start of period of limitation would be the date of encroachment into the suit property. When the plaintiffs is asking for mandatory injunction and that too in the year 2022 wherein the suit for permanent injunction was filed in the year 2015, it is to be accepted that plaintiffs is admitting that in the year 2015 itself, there was some encroachment made by the defendants in the suit property. 32. In the light of the above observations, submission of Mr. Ramani with regards to the mandate of Order 7, Rule 3 (Bombay Amendment) comes into play. When the subject matter is immovable property and when the plaintiffs' case is of encroachment, it is mandatory that plaintiffs must place the sketch showing as approximately as possible the location and extent of encroachment along with the plaint. This provision is with the intention to clearly identify encroachment, extent and location of its activity by way of a sketch appended to the plaint so that when the decree is passed, only such encroachment as shown in the sketch could be properly removed and not any other thing. Sketch to be appended to the plaint is mandatory as word "shall' is referred in the said provision. 33. Thus first of all when the original plaint shows that defendant placed a board in the suit property stating that it is site for construction and in fact started preparation, it was clear case of encroachment, as far as plaintiffs are concerned. No particular details were disclosed in the plaint. No sketch was attached as required under Order 7, Rule 3 ( Bombay amendment). Even in the proposed amendment, such details or sketch is not found. No particular details were disclosed in the plaint. No sketch was attached as required under Order 7, Rule 3 ( Bombay amendment). Even in the proposed amendment, such details or sketch is not found. 34. Duty of the Court is not only to consider the proposed amendment but also to see whether such amendment would serve purpose for which plaintiffs is approaching the Court. If amendment is cryptic without giving proper details, there is no point in allowing such amendment even though the same is filed by the plaintiffs claiming to be subsequent events. 35. In the case of Bharat B. Gupta(Supra), suit for mandatory injunction and prohibitory injunction as well as recovery of damages for use and occupation of the suit property was filed. In that suit it was the claim of the plaintiff that he purchased the suit property and raised three rooms with tin sheets. Plot was lying unutilised. Defendants made a request for using the said plot for storage purpose in connection with his work as a building contractor. Subsequently, defendant against approach the plaintiff and requested that his workers/munshi be allowed to reside in two rooms of tin sheet. Plaintiff allowed the said defendants to use the suit plot for storing material and his workers to reside in two rooms. Plaintiff then decided to carry out construction in the suit plot and accordingly ask the defendants to remove themselves and their belonging. However, it is claimed by the plaintiff that he issued notice to the defendants to remove himself from the suit plot along with his workers and since the defendants failed to do so he filed a suit for mandatory injunction directing the defendants to remove himself with all his belonging from the rooms and the open space and to prohibit the defendants from creating any third party right. Defendants contested the said suit claiming that the plaintiff is not having any right in the said suit plot. Thus the issue in question in that matter (Bharat Bhushan Gupta) is all together different. Wherein during cross examination valuation of the property was elicited from the witness and thereafter an application was filed under Order 7, Rule 11 of CPC stating that Court is not having jurisdiction and the plaint be rejected. Thus the issue in question in that matter (Bharat Bhushan Gupta) is all together different. Wherein during cross examination valuation of the property was elicited from the witness and thereafter an application was filed under Order 7, Rule 11 of CPC stating that Court is not having jurisdiction and the plaint be rejected. Reliance placed by Mr Desai is in connection with the submission found in para no.20.3 wherein learned counsel for the respondent argued that plaintiff in fact seek possession of the suit property in the garb of mandatory injunction. Similarly in paragraph 26 while referring to some decisions, the Apex Court has quoted some portion from the decision in the case of Milka Singh v. Diana, (1964 SCC Online J & K 8), which refers to observations of the High Court of J & K that in that case it has been shown to them that the appellant has come to the Court with the suit for mandatory injunction after considerable delay which will disentitle him for discretionary relief suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Simply quoting some decisions in observations or judgment as found in the case of Bharat Bhushan Gupta (supra) specifically when question of amendment was not at all raised therein, this decision will not help the petitioner in any manner. 36. In the case of Life Insurance Company of India (Supra), the Apex Court after considering the various earlier decisions on the aspect of amendment, summarised the conclusion in paragraph 70 which reads thus:- 70 Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC Online Del 1897) 37. In clause (c), it has been observed by the Apex Court that amendment cannot be allowed in connection with the time barred claim resulting in divesting of other side of a valuable accrued right. 38. It is no doubt true that amendment has to be allowed liberally and when it is necessary for determining the real question in controversy provided it does not cause injustice or prejudice to other side. 39. In the case of Ganesh Prasad (supra) paragraph 70 in the case of Life Insurance Company of India is quoted with approval. 40. 38. It is no doubt true that amendment has to be allowed liberally and when it is necessary for determining the real question in controversy provided it does not cause injustice or prejudice to other side. 39. In the case of Ganesh Prasad (supra) paragraph 70 in the case of Life Insurance Company of India is quoted with approval. 40. Plaint in the present matter would clearly goes to show that initially suit simplicitor for permanent injunction was filed claiming the relief of injuncting the defendant from trespassing into the suit plot, interfering or dispossessing or caring out any construction activities in the suit plot. Thus it is clear that plaint initially claimed that there is an attempt to encroach into the suit plot. Such attempt in fact started from 1.1.2015 itself when plaintiffs admitted in paragraph 15 that defendant erected a board stating about project undertaken by defendant for construction of building in the suit plot. Thus as far as question of encroachment is concerned, said began from 1.1.2015 itself. However, plaintiffs failed to seek relief of mandatory injunction thereby seeking removal of the encroachment from the suit plot. Admittedly, construction activities has commenced and even the building is completed when the appeal was pending i.e somewhere in the year 2017 itself. 41. As already discussed, limitation would not start running from the date of completion of the construction but it would commence from the date of actual encroachment into the suit plot. Starting of construction or completion of it is immaterial. The relief in the present application for amendment is also very cryptic and no specific details of the encroachment or even the building constructed by the defendant is disclosed. Be that as it may, observations of the trial Court that period of limitation for seeking mandatory injunction is three years cannot be faulted with. This is not a suit initially filed for possession. It is only for permanent injunction restraining interference. Interference by the defendant is itself established from the plaint which started from 1.1.2015. Thus seeking mandatory injunction in the year 2022 though the suit was filed in the year 2015, is clearly a time barred amendment and the prayer and if allowed would certainly effect valuable right accrued in favour of the defendant and also resulting in divesting such right. Thus seeking mandatory injunction in the year 2022 though the suit was filed in the year 2015, is clearly a time barred amendment and the prayer and if allowed would certainly effect valuable right accrued in favour of the defendant and also resulting in divesting such right. Thus when amendment is clearly a time barred claim, the same cannot be allowed even at pre-trial stage. Order of the learned trial Court, therefore cannot be considered as illegal or perverse so as to interfere in the supervisory jurisdiction of this Court. 42. Mr Desai would submit that even if it is considered that prayer for mandatory injunction as claimed in the amendment,the same is not barred in view of the decision of the Apex Court in the case of RE Cognizance for extension of Limitation decided on 10.1.2022 Misc. Application No. 21 of 2022 in Suo Motu Writ Petition (C) No. 3 of 2020. He submits that period of limitation was excluded from 15.3.2020 till 28.2.2022.. 43. Even if such contention is accepted, first and foremost aspect is to the date when the limitation began to run. It cannot be accepted that only after completion of the construction, period of limitation would start for the plaintiffs to claim any mandatory injunction for removal of encroachment. Such period shall start to run from the date of actual encroachment in the suit property and not from the date of actual construction. Plaint itself shows that by putting the board in the suit plot and by making preparations for construction, defendant encroached into the suit plot as on 1.1.2015. Thus even a prayer for mandatory injunction, limitation would start to run from 1.1.2015 itself and not from the actual date of completion of construction. Thus such decision of the Apex court for excluding the period of limitation from 15.3.2020 till 28.2.2022 will be of no help to the plaintiffs. 44. From the above observations, petition deserves to be rejected and accordingly, petition stands rejected. 45. Rule stands discharged. 46. Writ Petition stands disposed of accordingly.