WRIT PETITION NO v. (Original

.. Petitioner (Original defendant no.1)

1. Rohit s/o. Sangamnath Mandharne, Age : 25 years, Occupation : Agriculture.

2. Sangamnath s/o. Maroti Mandharne, Age : 56 years, Occupation : Agriculture. Both R/o. Kesrali, Taluka : Biloli, District : Nanded. .. Respondents (No.1 - Original plaintiff & No.2 - Original defendant no.2) (2) ....................... Mr. Govind G. Suryawanshi, Advocate, for the petitioner. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 9TH MARCH 2011 COURT'S ORDER :

Heard Adv. Mr. G.G. Suryawanshi, appearing for the petitioner.

The petitioner has challenged the order dated 25-1-2011, passed by the learned Joint Civil Judge (Junior Division), Biloli, below Exhibit 74 in Regular Civil Suit No. 21/2004, thereby allowing the application filed by respondent no.1 / plaintiff seeking amendment.

Adv. Mr. Suryawanshi contends that in a suit filed for declaration and permanent injunction, based upon existing possession, the respondent / plaintiff complained of subsequent dispossession and without establishing that subsequent event, wanted to incorporate prayer for recovery of possession. He (3) contends that for recovery of possession, the respondent / plaintiff has to file suit under Section 6 of the Specific Relief Act, 1963, within a period of six months and such a relief cannot be added to present suit as nature of suit itself undergoes change. He argues that pleadings and prayer clauses in the plaint cannot be allowed to be changed. He relies upon judgment of the Apex Court reported at 2009 AIR SCW 6644, in the case of M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons & others, to urge that subsequent cause of action cannot be allowed to be added in the suit already filed.

The respondent / plaintiff has complained of subsequent dispossession and whether he proves it or not, is to be decided during trial after giving parties necessary opportunity. The correctness or otherwise of that story is not relevant at this stage. The suit was for declaration and permanent injunction and by adding a prayer for recovery of possession which is lost during its pendency, nature of suit does not undergo any change.

Perusal of judgment of Hon. Apex Court, in the case M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons & others (supra), reveals that there, by amendment, plaintiff was attempting to get rid of admissions (4) made in original plaint and thereby defeating the provisions of Order XII Rule 6 of CPC and this was also adversely affecting the defendants. Hon. Apex Court has noted that such amendment changing entire character of plaint could not have been permitted, that too, after lapse of 4 years of the institution of the suit. The facts, therefore, clearly show that law laid down by the Hon. Apex Court has no application here.