1 W.P. 5731.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5731 OF 2011 Charandas S/o Nivrutti Gavle Age : 55 Yrs., Occ. Service, R/o : Ahmedpur, Dist. Latur. ..... PETITIONER V E R S U S 1. Dagdu S/o Nivrutti Gavle Age : 58 Yrs., Occ. Service, R/o : Ahmedpur, Dist. Latur. 2. Manohar S/o Nivrutti Gavle Age : 53 Yrs., Occ. Meson, R/o : Ahmedpur, Dist. Latur. ..... RESPONDENTS Mr. Jayant R. Patil, Advocate for the petitioner. Mr. A.P.Chaware, Advocate for Resp. No. 2. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 14/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2 W.P. 5731.2011 - [ J ] 2. The present respondents/original plaintiffs have filed Suit for declaration and injunction. The Suit was partly decreed to the extent of the relief of declaration. But, the relief of injunction was refused on the ground that the plaintiff was not in possession. The plaintiffs preferred Appeal. During the pendency of Appeal, the plaintiffs moved an application for amendment under Order VI Rule 17 of the Code of Civil Procedure seeking relief of possession. The said application is allowed. Aggrieved thereby, the present Writ Petition is filed. 3. Mr. Patil, the learned counsel for the petitioner vehemently contends that the said application could not have been allowed at such a belated stage. The plaintiffs claim to have been dispossessed during the pendency of the Suit, but no such amendment application was made in the Suit. Even when the Appeal was filed, the amendment application was not made and it was in the year 2011, for the first time, the amendment application was made seeking amendment in the plaint with regard to the relief of possession. The learned counsel submits that such an amendment could not have been allowed. The learned counsel relies on the Judgment of the Apex Court in the case of Gayathri Women’s Welfare Association V/s Gowramma and another reported in AIR 2011 SC ( Civil ) - 273. The learned counsel submits that the defendant/present petitioner is in possession of the property since 3 W.P. 5731.2011 - [ J ] beginning, much prior to the filing of the Suit. 4. Mr. Chaware, the learned counsel for the plaintiffs supports the order and submits that the Court has properly considered all the aspects and has rightly allowed the amendment application. It was within the province of the Court to allow the amendment application. The plaintiffs have been dispossessed during the pendency of the Suit and in view of that, the plaintiffs can claim the relief of possession. Even in Appeal, there is no bar to allow the amendment application. According to the learned counsel, the amendment allowed would relate back to the filing of the Suit. The learned counsel relies on following Judgments : i] Balkrishna Ganpat Elwande V/s Shankar Tukaram Sable and othersreported in 2006 ( 6 ) Mh.L.J. - 224, ii] Badrinarayan Bansilal Soman V/s Vinodkumar K. Shah reported in 2003 ( 2 ) Mh.L.J. - 120, iii] Mohan S/o Malurao Agrawal V/s Skaladevi Wd/o Sawarmal Agrawal and others reported in 2007 ( 2 ) B.C.J. - 354, iv] Dattaram V. Dharwadkar and another V/s Ghanshyam G. Bhende and another reported in 2002 ( 6 ) Bom. C.R. - 105, v] Bharat Petroleum Corporation Ltd. V/s Precious Finance Investment Pvt. Ltd. reported in 2007 ( 1 ) Mh.L.J. - 331, vi] Nanduri Yogananda Lakshminarasimhachari and others 4 W.P. 5731.2011 - [ J ] V/s Sri.Agastheswaraswamivaru reported in AIR 1960 Supreme Court – 622, vii] Menino Fernandes V/s Gabriel Fernandes reported in 2006 ( 6 ) MhL.J. - 425, viii] Ishwardas V/s The State of M.P. And others reported in AIR 1979Supreme Court – 551, ix] Sampath Kumar V/s Ayyakannu and another reported in AIR 2002 Supreme Court – 3369, x] Pankaja and another V/s Yellappa ( D ) by L.Rs. and others reported in AIR 2004 Supreme Court – 4102, xi] Dattaram V. Dharwadkar and another V/s Ghanashyam G. Bhende and another reported in 2003 ( 1 ) Mh.L.J. - 43. 5. With the assistance of the learned counsel, I have gone through the order. 6. The Courts are liberal while allowing the amendment application. It appears that the plaintiff claims to have been dispossessed during the pendency of the Suit. The amendment has been made at the belated stage i.e. for the first time in the Appeal in the year 2011, though the Appeal is filed in the year 2006. 7. The rights of the parties in an immovable property is the subject matter of dispute. The parties are required to be given an opportunity to put forth their case. The said amendment no doubt could 5 W.P. 5731.2011 - [ J ] have been allowed, but, with the rider. After the amendment application is allowed, the defendant would get a right to file additional Written Statement and raise all possible defences. 8. To allow the amendment or not is the discretion of the Court. The Appellate Court has exercised the said discretion. The merits of amendment sought is not required to be considered at the time of deciding amendment application. As such, I am not inclined to interfere in the discretion of the appellate Court. However, when the amendment application is being filed at belated stage, even the rights of the defendant will have to be safe-guarded. 9. In the result, I pass the following order : The order allowing the amendment application is not interfered with. However, the said amendment allowed by the lower appellate Court shall be subject to the law of limitation and will be deemed to have been made on the day when the application for amendment of the plaint is filed, in Appeal. All defences of the respective parties are kept open. 10. The Writ Petition is accordingly disposed of with the aforesaid observations and directions. 6 W.P. 5731.2011 - [ J ] 11. Rule is accordingly made absolute. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 5731.2011 - [ J ]