1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.118 OF 2009 IN WRIT PETITION NO.1477 OF 2009 Shri Ramchandra Jagdev Bhujbal & Ors. ...Petitioners Versus Shri Indrajit Subhash Khore & Ors. ..Respondents ...... Mr.Rahul Kadam for Petitioners. Mr.P.P.Killedar for Respondents. ...... CORAM:- A.M.KHANWILKAR, J. DATED :- JANUARY 8, 2010. P.C. 1. By this Petition, the Petitioners pray for recall of order dated 17th February 2009 passed in Writ Petition No.1477 of 2009, whereby the order passed by the Trial Court dated 7th August 2008 below Exhibit 63 in RCS No.195 of 1998 came to be confirmed. The latter order passed by the Trial Court was on application moved by the Petitioners/Plaintiffs for amendment of Plaint. The Plaintiffs intended to pray for further alternative relief of possession of the suit property in the event they were 2 to succeed on the main issue of their right, title and interest in respect of that property and the Court was to hold that they were in fact not in possession thereof. The Trial Court rejected the Application on the ground that no reason has been given by the Plaintiffs as to why the amendment was moved after ten years. The Trial Court has also noted that issue regarding possession has already been framed. Primarily, on this consideration, the Application came to be rejected. That order was challenged by way of Writ Petition which was dismissed with liberty to the Petitioners to question the correctness of the opinion recorded by the Trial Court in the Appeal to be filed against the final decision. 2. By the present Review Petition, it is contended that the Court has committed manifest error and has failed to take into account that the amendment sought by the Petitioners was for the alternative relief of possession of the suit property and would not change the cause of action as such. Reliance is placed on the decision of the Apex Court in the case of Sampath Kumar vs. Ayyakannu & Anr. reported in AIR 3 2002 SC 3369, which has taken the view that mere delay in making Application cannot be a ground for refusing prayer for amendment. 3. Notice was issued to the Respondents on the present Review Petition. The Respondents have appeared through Counsel and have argued in support of the view expressed by this Court as well as by the Trial Court. 4. Having considered the rival submissions, I am in agreement with the argument of the Petitioners that it is necessary in the interest of justice to recall the order dated February 17, 2009. This is so because the situation to be faced by the Petitioners even after succeeding on the principal issue of right, title and interest in the suit property but if they were to fail on the issue already framed as to whether they are in fact in possession of the suit property, they would be rendered remedy less or at best, would be required to take recourse to another Suit for recovery of possession of the suit property which would result in multiplicity of proceedings. More over, the two 4 reasons recorded by the Trial Court cannot be the basis to reject the prayer for amendment of Plaint so as to ask for further alternative relief of possession of the suit property. 5. The first reason recorded is that issue of possession has already been framed. This opinion overlooks the position that if the said issue is to be answered in favour of the Petitioners, then there would be no difficulty. However, if it were to be answered against the Petitioners, further relief as is required cannot be granted unless specifically prayed. For that reason, the Petitioners have resorted to amendment of Plaint and asked for further alternative relief. 6. The second reason recorded by the Trial Court is that the Plaintiffs have not given any reason for delay of about ten years for taking out such amendment application. In view of the decision of the Apex Court in Sampath Kumar (supra), that alone cannot be ground for rejecting the prayer for amendment. In the present case, the Petitioners have taken recourse to amendment obviously out of abundant precaution 5 having regard to the prima facie finding recorded while considering the Application Exhibit 5 for interim relief during the pendency of the Suit. Besides, it is common ground that the Suit has progressed only up to the stage of framing of issues and the evidence is yet to be proceeded. For that reason also, no prejudice would be caused to any party if the amendment as prayed for is to be granted. 7. Taking overall view of the matter, therefore, in my opinion, in the interest of justice and also to avoid multiplicity of proceedings, the relief of amendment of plaint as sought, ought to succeed. For that reason, the Review Petition succeeds. The order passed by me on 17th February 2009 in Writ Petition No.1477 of 2009 is recalled and instead the said Writ Petition will have to be allowed. 8. As a consequence the order passed by the Trial Court dated 7th August 2008 below Exhibit 63 is set-aside and instead, the said Exhibit 63 is made absolute. The Petitioner shall carry out amendment within four weeks from today. 6 9. The above indulgence is shown on condition that the Petitioners shall pay cost to the Respondents quantified at Rs. 5,000/- (Rupees Five Thousand) which is condition precedent for allowing this Petition. 10. Needless to observe that Respondents/Defendants would be entitled to file additional written statement after the amendment of the Plaint is carried out by the Plaintiffs. 11. Review Petition as well as Writ Petition disposed of on the above terms. A.M.KHANWILKAR, J.