1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1156 OF 2010 (Hussain Gambhira Chouhan & Anr. vs. Sitaram K. Hedaoo & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 23, 2010. Heard finally Shri Phadnis, learned counsel for the petitioner and Shri Kaore, learned counsel for respondent No. 1. In the suit filed by the respondents – plaintiffs for recovery of possession, at the stage of final hearing, it was brought to the notice of trial Court that specific issue on the question of limitation and possession was not formulated. The trial Court formulated that issue and because of that issue, the respondents – plaintiffs wanted to lead additional evidence. He wanted to examined one Liladhar as witness. However, at that stage they changed the lawyer and new lawyer found that there was no pleadings to support the evidence to be brought on record through Liladhar. Hence, leave to amend plaint was sought and the amendment was to explain possession of Liladhar as tenant and to correct description of suit premises, as according to the plaintiffs, the petitioners – defendants had altered the nature of structure. That amendment has been allowed 2 by the trial Court. The petitioners – defendants have challenged that order. Shri Phadnis, learned counsel contends that suit is for recovery of possession. The evidence of said Liladhar could have been laid in regular course when plaintiffs examined themselves and the necessary pleadings could also have been added at that stage only. He argues that there is no justification to carry out such amendment and change of lawyer cannot be the reason therefor. Shri Kaore, learned counsel, on the other hand, places reliance upon the judgment of the Hon'ble Apex Court in the case of Surendra Kumar Sharma vs. Makhan Singh, reported at 2009 AIR SCW 6131, to show that mere delay cannot be the reason to deny amendment. According to him, the nature of suit does not undergo any change and hence discretion exercised by the trial Court needs to be honoured. The perusal of judgment of the Hon'ble Apex Court does not show that the amended provisions of Order 6, Rule 17 of Civil Procedure Code was being looked into. Shri Kaore, learned counsel is right when he contends that the nature of suit does not undergo any change. However, the entire controversy changes because the description of suit property itself is being changed after the matter was closed for final arguments. Not only this, the evidence of Liladhar is sought to be introduced to show that Liladhar was tenant of the 3 respondents – plaintiffs in those premises before the plaintiffs alleged dispossession by the petitioners – defendants. It is obvious that this material was always available to the respondents – plaintiffs and could have been pleaded before the trial Court before recording of evidence i.e. before the trial began. There is absolutely no justification as to why such material could not be earlier pointed out to trial Court. In this situation, the order allowing amendment cannot be sustained. The said order is, therefore, quashed and set aside. However, the respondent is given liberty to challenge the said order after the final adjudication, if the contingencies therefor arise. Writ Petition is allowed. No costs. JUDGE *GS.