1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4120/2008 (Yashwant Tularamji Khune vs. Saibai Devaji Lade and others) ====================================== CORAM : B.P.Dhamadhikari, J. DATE : 25 st NOVEMBER, 2008 Heard Advocate Jibhkate, for petitioner/ plaintiff and Advocate Morande, for respondent/ defendant. The suit for declaration and injunction filed by the petitioner in the year 1991 came to be dismissed on 14.2.1998 and Regular Civil Appeal No. 4/98 filed against it is now at the stage of final argument. The petitioner/plaintiff filed application for amendment in that appeal vide Exh. 31 contending that he has been forcibly dispossessed on 27.6.2005. The present respondent has filed reply and stated that the story was apparently false. It was also pointed out that in earlier pleadings, while filing application under Order 39, Rule 1 & 2, the allegations was made that present respondent has taken advantage of appellant's 2 absence and committed encroachment on suit plot. Those pleadings made on 11.3.1990 was pressed into service to show that the story of dispossession on 27.6.2005 was apparently incorrect and false. The lower appellate Court has found the application to be misconceived and therefore, rejected it. Advocate Jibhkate argues that whether dispossession has taken place in 1998 after the judgment & decree of trial Court or on 27.6.2005 as contended by the petitioner is disputed question and while considering prayer for amendment that question was not relevant as it pertains to merits of the matter. He argues that petitioner lost possession on 27.6.2005 and after the prayer for restoration of possession is not allowed to be incorporated, the Court will not be in a position to record its finding about it and though the appellate Court may find judgment & decree of the trial Court unsustainable & till the petitioner/plaintiff will not get relief of possession and he will be required to file fresh suit therefor which will again take some time. He, therefore, states that if prayer for amendment is allowed at this stage, the said time can be saved. Advocate Morande on the other hand states that the story of dispossession on 27.6.2005 is 3 apparently false and is being added only to protract the litigation. He contends that if such prayer is allowed to be added, whether the petitioner lost possession on 27.6.2005 will be a disputed question on which parties will be required to lead evidence and it may amount to reopening of earlier finding given by the trial Court that the petitioner/plaintiff was not in possession. He, therefore, states that the appeal should be allowed to be decided first and the lower appellate Court has rightly rejected the application. After hearing the parties, I am satisfied that it will not be proper in the present circumstances to allow the amendment at this stage as the hearing of appeal will be unnecessarily delayed and it may also have the effect of reopening the entire controversy which has been settled by the Trial Court. However, the contention of present petitioner/plaintiff cannot be stated to be totally false or incorrect. Hence, liberty is given to the petitioner/plaintiff to challenge the impugned order dated 25.08.2008 after final adjudication in R.C.S. No. 4/1998 which is now pending before the Ad-hoc District Judge, Gadchiroli. The said Court to decide the appeal as early as possible and in any case by 31st January, 2009. 4 With above observations and liberty, writ petition is disposed of. JUDGE Rvjalit