1 wp 7588.2008.sxw srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE WRIT PETITION NO. 7588 OF 2008 Pirgonda Shivgonda Patil .. Petitioner vs Shripatrao Dhondiba Bhosale & Ors. .. Respondents Mr. Nagesh Chavan i/b Tejpal S. Ingale, Advocate for Petitioner. Mr. Mandar Limaye, Advocate for Respondent No.1. .. CORAM: A.S.OKA,J DATE: 4th September, 2009. P.C. 1 Heard learned counsel appearing for the petitioner and the learned counsel appearing for the 1st respondent. The petitioner is the defendant and the respondents are the plaintiffs. By the impugned order dated 18th August, 2008, the learned trial Judge has allowed the application for amendment of plaint made by the respondents. 2 The learned counsel appearing for the petitioner pointed out that by the impugned order the respondents have been permitted to amend the plaint pending an appeal and by the proposed amendment, the respondents-plaintiffs have been permitted to seek relief of removal of encroachment. He pointed out that the suit was filed in the year 1993 which was dismissed on 3rd August, 2 wp 7588.2008.sxw 2004. He pointed out that the appeal is pending from the year 2004. The application for amendment is belatedly made by the respondents on 23rd June, 2008. He submitted that such belated amendment could not have been allowed by the appellate court as the same will have effect of reopening of the trial. 3 The learned counsel appearing for the respondents submitted that in the plaint there was already a prayer for removal of encroachment made by the plaintiff and therefore the proposed amendment does not change the nature of the suit. On the instructions of the respondents, he stated that they do not desire to lead any further evidence on the basis of amendment as evidence regarding encroachment has already been adduced by them. 4 I have carefully considered the submissions. One of the prayers made in the plaint is for a decree directing the petitioner to remove construction made by him by encroaching upon the suit property. Perusal of the judgment of the Trial Court shows that a specific issue has been framed by the Trial Court on the allegation of encroachment made by the respondents-plaintiffs. 5 By making an application on which the impugned order has been passed, the respondents desire to incorporate a specific prayer of delivery of possession of the encroached portion, in the alternative to the prayers which are already made in the suit. The second amendment is sought for payment of deficit court fees. 3 wp 7588.2008.sxw 6 The proposed amendment is not going to change the nature of the suit. Moreover, the respondents have made a statement that they do not desire to lead any further evidence on the basis of impugned order allowing the amendment. In the circumstances, no case for interference in a Writ Petition under Article 227 of the Constitution of India is made out. 7 Writ Petition is rejected. However, it will be open for the petitioner to file additional written statement to the amended plaint within a period of six weeks from today. All the contentions of the parties kept open. Judge,