1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3323 OF 2009 Shantabai w/o Akaram @ Annaso Patil ...Petitioner vs. The State of Maharashtra & Ors ...Respondents Mr.G.S.Godbole i/b Ms Manjiri Parasnis for the petitioner Mr.T.S.Ingale for respondent no.5 Mr.Rahul Walvekar for respondent nos.2 to 4 CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 P.C. 1 Heard the learned counsel for the parties. The challenge in this Writ Petition under Article 227 of Constitution of India filed by the original plaintiff is to the impugned orders dated 12th September 2008 by which the applications for amendment of the plaint at Exh.59 and Exh.67 have been rejected by the trial Court. 2 The petitioner filed a suit for injunction restraining the respondents from carrying out digging and from erecting electric pole and laying down 33 K.V.High Tension Power line through the suit property described in paragraph 1 of the plaint. The petitioner claims to be the owner of the suit property. An application for temporary injunction was filed by the petitioner restraining the respondents from erecting the poles and from taking high tension power line through the suit property. The application for temporary injunction was rejected. An appeal was preferred by the petitioner which came to be dismissed. Writ petition was filed by the petitioner for challenging the said order which was dismissed on 25th January 2007. 2 3 The application at Exh.59 is filed by the petitioner on 13th October 2006. It is alleged in the said application that after the appeal preferred by the petitioner was dismissed by the District court, the polls have been erected on the suit property and the high tension power line has been taken through the suit property. Amendment was sought for incorporating the factual statements regarding the subsequent events and for incorporating the relief of mandatory injunction for restoration of status quo ante. The other application at Exh.67 was made for carrying out amendment to the valuation clause of the plaint. 4 By the separate orders passed on 12th September 2008, the trial Court rejected both the applications. The trial Court observed that the suit for prohibitory injunction was sought to be converted into one for mandatory injunction and therefore, it will change the nature of the suit. Amendment sought by the application at Exh.67 was a consequential amendment to the amendment prayed for in Exh.59. 5 The learned counsel for the petitioner submitted that the applications for amendment have been rejected on erroneous ground and in fact the amendment was necessary to avoid multiplicity of the proceedings. The learned counsel for the 2nd to 4th respondents as well as 5th respondent opposed the petition by contending that even the trial of the suit has commenced. It is pointed out that the trial has commenced in the year 2009. 6 I have carefully considered the submissions. The case made out by the petitioner in the application at Exh.59 is that after the appeal preferred by the petitioner for challenging the order passed below the the 3 application for temporary injunction at Exhibit 5 was dismissed, work of erection of polls and laying down high power line has been carried out. Amendment sought is for mandatory injunction against the respondents for restoration of status quo ante. The applications for amendment have been rejected on the ground that the suit is fixed for hearing. The applications have been rejected on the ground that the same will change the nature of suit. The said ground is totally erroneous. The amendment prayed for in application at Exh.59 was necessitated by subsequent events. In fact, the said amendment is necessary to avoid multiplicity of the proceeding. Amendment was sought by application at Exh. 67 is merely a consequential amendment. The impugned orders are erroneous and deserves to be quashed and set aside. 7 Hence, I pass the following order : i) Impugned orders dated 12th September 2008 are quashed and set aside and applications at Exh.59 and 67 are allowed. ii)Amendment to be carried out within a period of two weeks from the date of receipt of writ of this order by the trial Court. iii)It will be open for the defendants to file additional written statement to the amended plaint within a period of 8 weeks from the date on which amended copy of the plaint are received to the defendants. iv)Writ petition is allowed in above terms. JUDGE