1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.1117/2010 Ankush Namdeorao Kalhane and another Vs. Namdeorao S. Kalhane and others. ----------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM: B.P. DHARMADHIKARI, J. DATE : 24th JUNE 2010. 1] Heard learned counsel for the respective parties. 2] Advocate Deshpande points out that in the suit filed by the petitioners for partition and separate possession Respondent no.5 filed counter claim and also sought temporary injunction to protect his possession. The petitioner had also sought similar temporary injunction. The Trial Court rejected the temporary injunction to the petitioners and granted application of respondent no.5. The petitioners then approached this Court in A.O. No.15/2008 and that A.O. Was allowed on 21st August 2008. This Court, prima facie, found that material on record sufficiently demonstrated possession of the appellant before it. Thereafter the recording of evidence began before the trial Court in December, 2009. One of the plaintiffs entered witness box, and after his evidence, 2 respondent no.5 moved application under Order VI Rule 17 of the Code of Civil Procedure alleging that in March 2009 he was dispossessed by the plaintiffs forcibly and, therefore, sought to add relief of recovery of possession with necessary facts. That application was opposed by the petitioners and by impugned order dated 3.2.2010 it has been allowed by the trial Court. Advocate Deshpande states that no reasons are given as to why after March 2009 the application could not moved within reasonable time and in any case before the plaintiff led his evidence. He further states that the amendment proposed is also very vague and if such amendment is allowed, it prejudices the petitioner. According to him, the impugned order does not consider all these facts. 2] Advocate Shende, on the other hand, points out that taking advantage of the judgment dated 21st August 2009 delivered by this Court, the petitioners forcibly dispossessed respondent no.5 in March 2009 and the application was moved immediately after the plaintiff entered witness box. According to him, the only words about prayer for recovery of possession with basic facts are sought to be added and no prejudice is caused to the petitioners by adding those words. 3 3] Perusal of the impugned order reveals that the trial Court has attempted to find out whether nature of suit (counter claim) undergoes any change. The trial Court also records that plaintiff examined PW 1 Ankush and filed affidavit of his examination-in-chief on 24.8.2008 and his cross- examination was going on and was deferred to 4.12.2009. 4] In this situation, the trial Court ought to have made efforts to find out whether the application was moved within reasonable time after the alleged dispossession. It has only given importance to the fact that the petitioners/plaintiffs are already claiming to be in possession and hence by allowing prayer for recovery of possession in counter claim, no prejudice would be caused to them. The effect of not moving application within reasonable time has not been considered at all and the effect of that story on record or fact that the witness has already entered witness box and his cross-examination is going on is not looked into. 5] Even before this Court, respondent no.5 has not disclosed any reason as to why the said amendment of alleged dispossession in March 2009 could not be asked for immediately. 4 6] The impugned order, therefore, shows non-application of mind, the same is quashed and set aside. Respondent no. 5 is at liberty to file appropriate proceedings for alleged recovery of his possession in accordance with law in the matter. 7] With this liberty, respondent no.5, rule is made absolute. No costs. JUDGE Ambulkar.