FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS WP/8686/2010 SHARADGIRI vs PANDHARINATH ... 1. Heard Shri Sapkal, learned Advocate for petitioners and Shri Bedre, learned Advocate for respondent No.1. 2. It is apparent that the prayer for injunction to restrain respondents from interfering in the possession of the plaintiffs was already made and therefore, the trial Court framed issue and cast a burden upon petitioners / plaintiffs to establish their possession. Thereafter, the issues were re-cast on 22.2.2010 but the basic issue remained as it is. The trial Court has already started recording of evidence. Taking advantage of the issues as re-cast the petitioners/ plaintiffs wanted to add a prayer, in alternative, for recovery of possession. It was opposed by other side by placing reliance upon the amended provisions of Order VI Rule 17 of CPC. The trial Court has rejected the prayer for amendment and that order is questioned before this Court. 3. Shri Sapkal, learned Advocate contends that the prayer for restoration of possession is by way of abundant precaution and in the alternative and therefore, nature of suit does not change. Shri Sapkal, learned Advocate placed reliance on the judgment of Honourable Supreme Court in the case of Dhanpal Balu Vs. Adagouda Nemagouda [2009 (3) Bom.C.R.554] and judgment of this Court in the case of Lalchand Sheetalsing Pardeshi Vs. Ramkrishna Kashinath Jadhav [2004 (2) Bom.C.R. 757] to substantiate his contention that such amendment can be allowed. 4. Advocate Shri Bedre states that both the reported rulings consider the provisions of Order VI Rule 17 of CPC prior to its amendment in 2002 and therefore, these judgments are not relevant. FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS (2) WP/8686/2010 5. The trial had already started and after starting of trial, facts have not undergone any change. Issues as it recast does not in any way change the burden of proof or nature of evidence required. 6. The judgment of the Honourable Supreme Court is delivered in Civil Appeal No.5229 of 2000 i.e. obviously prior to amendment of CPC in 2002. Said judgment is, therefore, not relevant in the present matter. Similarly, the judgment of the learned Single Bench of this Court (supra) is in a suit for specific performance where the provisions of Section 22 of the Specific Relief Act have been looked into. The consideration therein again shows that the suit was already filed by the plaintiff prior to amendment and in that suit some affidavit was filed by the plaintiffs therein on 13.8.2002, complaining dispossession in May 2002. Present suit is not for specific performance. 7. I, therefore, find no jurisdictional error or perversity in the impugned order. With liberty to the petitioners to challenge the final order of the trial Court, if occasion arises, present Writ Petition is disposed of with no order as to costs. Dt.29.4.2011 (B.P.DHARMADHIKARI,J.) akl