wp5140-11.odt /1/ Order IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION No. 5140 of 2011 Santosh Rakhmaji Gadhe and others. Vs. Sahebrao Narayan Jagtap - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R.G. Kavimandan, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK J. DATE : 16 th December, 2011. By this petition, the petitioners impugn the order passed by the trial court on 9.9.2011 allowing an amendment application filed by the respondent. The respondent is the original plaintiff. A suit was filed by the respondent-plaintiff against the petitioners- original defendant nos. 1 to 3 for a permanent injunction restraining the petitioners from creating any hurdle in the smooth user of the suit way. It was the case of the plaintiff that the plaintiff and the predecessors-in-title of the plaintiff and the original defendant nos. 4 to 11 had been using the way since long and had also acquired a right of way by easement of necessity. It was the case of the plaintiff that he and his predecessors-in-title were using the suit way since the year 1956 for a period of more than 20 years. The petitioners denied the claim of the plaintiff and also denied that the plaintiff had a right of way as an easement of necessity or an easement of prescription. The wp5140-11.odt /2/ Order petitioners sought for the dismissal of the suit. After the issues were framed and the evidence of the plaintiff was tendered on affidavit, the plaintiff filed an application for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure. Though the petitioners strongly opposed the application, the trial court allowed the same by the impugned order dated 9.9.2011. It is submitted on behalf of the petitioners that the trial court could not have allowed the amendment application when the trial had commenced as the plaintiff had failed to establish that in spite of due diligence the plaintiff could not have pleaded the facts stated in the proposed amendment before the commencement of the trial. It is submitted on behalf of the petitioners that the suit was initially filed for permanent injunction restraining the petitioners from permitting the plaintiff to use the suit way and by the proposed amendment the plaintiff could not have sought a declaration that he had a right of way through the disputed suit way as the proposed amendment changed the nature of the suit. The learned counsel for the petitioners relied on the judgment reported in AIR 2009 SC 1433 to substantiate his first submission and then relied on AIR 2008 SC 2134 to substantiate his second submission. On hearing the learned counsel for the petitioners and on perusal of the plaint pleadings, the amendment application and the impugned order dated 9.9.2011, it appears that the trial court did not commit any jurisdictional error in allowing the amendment application by the impugned order dated 9.9.2011. It is clear from the plaint pleadings that the plaintiff had categorically pleaded that he and his fore-fathers wp5140-11.odt /3/ Order were using the suit way since the year 1956 i.e. for more than 20 years. It was also categorically pleaded that the plaintiff and his predecessors-in-title were using the suit way and since there was no other way, they were using it as an easement of necessity. Though the plaintiff had made a prayer for permanent injunction, it appears that inadvertently the plaintiff had failed to make a prayer for a declaration that he had a right of way by easement of necessity and by easement of prescription. By the proposed amendment the plaintiff did not want to plead any facts but just wanted to amend the prayer clause so as to seek the aforesaid declaration. Though the trial had commenced, the trial court rightly allowed the amendment application as the rejection of the same could have resulted in multiplicity of proceedings. The trial court was of the view that the proposed amendment did not change the nature of the suit as the suit was filed for permanent injunction and by the proposed amendment the plaintiff was merely seeking a declaration that he had a right of way as an easement of necessity and as an easement of prescription. In fact, for effectively deciding the controversy between the parties and to set the controversy between the parties at rest, once for all, the trial court allowed the amendment application. The judgment reported in AIR 2008 SC 2134 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case as in that case in a suit for specific performance, the plaintiff therein, by the proposed amendment, was desirous of seeking a relief of declaration of title. The two prayer clauses were contradictory to each other and according to the Hon'ble Supreme Court, changed the nature of the suit substantially. wp5140-11.odt /4/ Order Such is not the case here. The proposed amendment in this case did not change the nature of the suit at all and the permanent injunction, if any, could have been granted by the trial court after granting a declaration in favour of the plaintiff. The trial court rightly followed the decision of this court in 2011 (5) Mh. L.J. 156 to hold that the amendment in this case was necessary for a just decision in the suit. Merely because the trial had commenced in this case, it cannot be said that the amendment should not have been allowed as it is now well settled that the court can allow an amendment application if the court finds that the proposed amendment is necessary for effectively deciding the controversy between the parties, as the ultimate aim of the court is to arrive at a just decision. Hence, for the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE Hirekhan.