:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1566 OF 2008 Shri Zulfikhar Kasam Punawala ..Petitioner Vs. 1. Smt.Kantabai Vishwas Deshmukh and ors. ..Respondents Smt. N.S. Baig for petitioner. Mr. U.B. Nighot for respondent no.4. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : April 04, 2008. Date : April 04, 2008. Date : April 04, 2008. P.C.: P.C.: P.C.: 1. Heard the learned counsel for the petitioner who is the plaintiff in RCS No. 65 of 1997 and he is aggrieved by the order dated 13/12/2007 passed by the learned Joint Civil Judge, J.D., at Junner thereby rejecting the amendment application filed at Exh.100. 2. The suit was instituted on 15/4/1997 for simpliciter injunction against the defendants in respect of suit plot admeasuring 37 R. and part of Survey No.657/B (CTS No.1655). Written Statements :2: were filed at Exhs.50 and 34. In the amendment sought to be made, the nature of relief prayed for would also change in as much as the plaintiff came out with a case that defendant no.4 was an encroacher and the encroached portion was to be put in possession of the plaintiff. The defendant no.4, on the other hand, in the Written Statement filed before the trial court came out with a case that she was a purchaser from one Mrs. Mohini More in the year 1989 and she had built a residential structure in the year 1990. Village Panchayat extracts for the years 1989-93, 1993-98, 1999-05 were placed on record at Exh.107 and the said documents indicated the house area as 24x24 ft. over CTS No.1655 and the ownership of defendant no.4. It is thus clear that when the suit was filed, the defendant no.4 was already in occupation of the house located on the suit plot. Almost after 9 years the plaintiff sought to amend the suit in such a way that the relief prayed for would substantially alter. The trial court also noted that initially the injunction sought for was in respect of the entire suit property and by the amendment it was sought to be limited to the house structure put up by defendant no.4. In :3: these circumstances, the trial court held that the application did not fall in the category calling for consideration to allow the amendment so as to remain the relief intact and the application was seeking substantial change in the nature of suit, if it would be allowed. If so advised, the plaintiff may file an independent suit against the defendant no.4 and the alleged measurement and distribution of the suit plot into different 8 sub-plots/parts cannot be the cause of action to move the amendment application so belatedly. Hence, the view taken by the trial court cannot be faulted with and it is a possible view. 3. Petition is rejected. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)