1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.197 OF 2008 Nahresh Maruti Shingapure .. Petitioner Versus Tukaram Nivrutti Shingapure .. Respondents Mr.Umesh Mankapure for petitioner Mr.Mandar Limaye for respondent No.1 CORAM : S.C.DHARMADHIKARI, J. DATE : 26th February 2008 P.C. . The present petitioner is the plaintiff in the Regular Civil Suit which has been numbered as 92 of 2005. That is a suit for declaration and perpetual injunction against original 2 defendant. It is urged that an application was filed initially to withdraw the suit with leave to file fresh suit, upon noticing that some portion of the suit property has been encroached upon by one Tamboli. That application was rejected. Thereafter, the subject application Exh.75 for amendment is preferred. The prayer therein is that during the pendency of the suit, the property came to be measured by a surveyor who filed his report along with map. The adjoining property holder Fatima and Hajra have encroached upon Gat No.1637 to the extent of 7 ars. and that is how the application for amendment so that the relief of possession insofar as the encroached portion can be claimed after declaration against Tamboli. Only Defendant No.1 opposed the prayer for amendment whereas defendant Nos. 2, 3 and 4 did not file any reply. 2. Defendant No.1 is the brother of 3 petitioner plaintiff. Upon noticing that both brothers are fighting for the same land, petitioner expected no concession from the defendant. However, the brother defendant No.1 objected firstly on the ground that the amendment cannot be granted after rejection of the earlier application for withdrawal of the suit. Secondly, the amendment would change the cause of action inasmuch as the suit for declaration and perpetual injunction would now be converted into a suit for possession. 3. Accepting this objection, the trial court rejected the application for amendment and that is how the petitioner plaintiff is before me. 4. The suit is for declaration with regard to the land more particularly described in prayer clauses (a) and (b), so also perpetual injunction. However, a small portion on the southern side of the property has been encroached 4 upon and that is how the petitioner wanted to incorporate this subsequent development in the plaint and claim reliefs based thereupon. He contended that the Encroachment of 7 ars. is in the same property. The suit is also for declaration of title with regard to the same property. Therefore, to avoid multiplicity, if the encroachment is also made subject matter of the suit, that would meet the ends of justice. Further, it would assist the Court in effectively and completely resolving the controversy between the brothers and their entitlement. 5. As to how the cause of action changes, is not clear to me at all. Prayer for declaration of the suit property remains so also perpetual injunction. What would only be added is removal of encroachment of 7 ars. and that the alleged encroacher Tamboli should restore the possession of the property to whomsoever is entitled to, after the suit is decided. 5 6. Now incorporation of such a relief, based upon subsequent development does not change the cause of action and to my mind reasoning in paras 7 and 8 of the impugned order is clearly contrary to law and untenable. Merits of the amended pleas could not have been gone into. There is no question of completely altering or substituting any cause of action. This is an additional relief based upon subsequent development. Nature of the suit and the relief remains the same. In sofar as encroached portion is concerned, additional relief is claimed of possession. In such circumstances, the amendment should have been granted. Amendments should have been granted in the light of the liberal principles that are to be applied. Accordingly, the impugned order is quashed and set aside. Application Exh.75 is allowed. Amendments to be carried out within two weeks from today. Additional written statement within four weeks 6 thereafter. Petition disposed of. No costs. (S.C.Dharmadhikari, J)