1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10635 OF 2010 Sahebrao Shenpadu Patil and others ...Petitioners Versus Sau. Laxmibai Dhansingh Patil and Anr ...Respondents ..... Mr. Shrikant S. Patil, advocate for the petitioners ..... CORAM: S. S. SHINDE, J. DATED: 30TH NOVEMBER, 2010 PER COURT:- 1 This petition is filed challenging the order dated 11.6.2010 passed by the Joint C.J.J.D. Dhule below Exh.51 in R.C.S. No. 302 of 2000. The respondents herein filed an application for amendment of plaint. The said application was allowed. The petitioners, being aggrieved by the said order have filed this petition. 2 Counsel for the petitioners submits that the suit is filed in the year 2000. Issues are framed as back as in the year 2001. The application for amendment is filed in the year 2009, which is at very belated stage, when the trial is already in progress. Learned counsel 2 further submitted that even if the case of the respondents that they are dispossessed by the petitioners herein, is taken as it is, even then, the application for amendment is filed at belated stage. Learned counsel further submitted that the application for temporary injunction which was filed by the plaintiffs i.e. respondents herein came to be rejected. Against that an appeal was preferred by the respondents before the appellate court which also came to be rejected in the year 2004. Therefore, from 2004, till 2009 the respondents have not taken any steps and in the year 2009, the application is filed for amendment of the plaint, which obviously is time barred and no due diligence has shown in the said application. Therefore, counsel would submit that such application at belated stage should not have been allowed by the trial court. The counsel further submits that if this Court is not inclined to allow this writ petition, in that case alternatively he prayed that the effect of the said amendment should be given from the date of filing of the application and not retrospectively i.e. not from the date on which the suit came to be filed. He therefore, submits that this writ petition deserves to be allowed. 3 I have given due consideration to the submissions of counsel for the petitioners. Perused the contents the petition, annexures thereto and the impugned order passed by the court below. The entire controversy involved in the suit pending before the trial court is about the possession. The petitioners herein submitted that even before 3 filing of the suit the plaintiffs were never in possession and subsequently also they are not in possession. The trial court considered the judgment of this Court in the case of Ashok Gauri Shankar Vs. Gurammabai Sanmukhghada Patil, reported in 1994 Mh.L.J. 286 and has allowed the application for amendment holding that the amendment will set at rests the entire controversy involved in the matter. The trial court has observed that the entire controversy between the parties in respect of possession can be set at rests, if the amendment is allowed. Once for all, the controversy about the possession shall be set at rests. 4 On independent scrutiny of the contention raised in the petition, I am of the opinion that, the trial court has taken possible view in the matter. There is no dispute that entire controversy pertains to possession. The petitioners herein asserted that the respondents herein who are original plaintiffs are not in possession of the suit property even prior to filing of the suit. That apart, after rejecting application for temporary injunction, the plaintiffs did file appeal aggrieved by the said decision and according to the plaintiffs, they are forcibly dispossessed by the defendants. The trial court on the strength of documentary evidence brought on record, held that entire controversy regarding possession can be set at rests by allowing application for amendment. In my view, possible view has been taken by the trial court. therefore, no interference is warranted. Writ petition, 4 therefore, stands dismissed. 5 However, I find substance in the contentions of learned counsel for the petitioners that so far as forceful dispossession of the plaintiff is concerned, it cannot relate back to the date of filing of the suit. Therefore, while adjudicating the matter, the trial court to keep in mind so far as the amendment in plaint of the plaintiffs in respect of forceful dispossession is concerned, to give effect to it from the date of filing of application for amendment. 6 With these observations, writ petition stands dismissed. ( S. S. SHINDE. J.) rlj/