1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5015/2009. Ramnath Baikunth Pande and another -: versus :- Chandrakant Kisan Bangar and others 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. DATED : MARCH 26, 2010. Heard Shri B.N. Mohta, learned counsel for petitioners and Shri S. Zooting, learned counsel for respondents no.1 and 2. Petitioners have filed a suit for declaration and possession and an injunction to protect it, way back in the year 1998. The temporary injunction application was rejected and Misc. Civil Appeal filed against it was also dismissed on 30.04.2002. The recording of evidence began on 16.08.2005 and cross examination of plaintiffs and their another witness is also over. Examination-in-chief of remaining two witnesses is placed on record by affidavits. At that stage the petitioners / plaintiffs moved an application for amendment of plaint seeking to introduce relief of restoration of possession, if the court finds that the petitioners/ plaintiffs is not in possession. That application has been rejected by the trial Court vide the impugned order dated 09.10.2009. 2 Shri Mohta, learned counsel for petitioners argues that because of rejection of temporary injunction and findings recorded therein, that petitioners / plaintiffs are not in possession, amendment in the alternative with necessary plea factual background in support has been sought. Shri Zooting, learned counsel appearing for respondents supports the impugned order. He contends that petitioners/ plaintiffs are themselves not very clear about the stand before the trial Court. He contends that the two inconsistent pleas are being pressed into service simultaneously that too at belated stage, and without any justification. According to him, this is going to cause serious loss to the respondents. I have perused the application for amendment as filed vide Exh.133. The plaintiffs wanted to add the following in the title of the suit “suit for possession, alternatively if the defendants found in possession and for purpose of possession the Court fee of Rs. 1680/- and jurisdiction for Rs.8400/-”. Thereafter necessary facts about the same are sought to be added by pointing out various entries in crop statement. It needs to be noticed that such amendment is sought at the stage when half of the evidence of plaintiffs is over and two witnesses are only to be cross examined. The original facts asserting possession of petitioners / plaintiffs are maintained, and subsequently dispossession has been accepted. Date of dispossession is not pleaded anywhere. Other side is right in contending that two inconsistent pleas are raised simultaneously at the stage of evidence. Such an effort is definitely going to prejudice the respondent 3 defendant. No objection therefore can be taken to the application of mind by the learned trial Court. However, considering the fact that the suit is pending since 1998, with liberty to petitioners/plaintiffs to move appropriate application for amendment within a period of two weeks from today, present Writ Petition is disposed of, with no order as to cost. JUDGE Rgd.