{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1537 OF 2009 1. Ganesh Laxman Kulkarni R/o Yawal, Dist-Jalgaon 2. Naresh Laxman Kulkarni R/o Yawal, Dist-Jalgaon 3. Mahesh Laxman Kulkarni R/o Yawal, Dist-Jalgaon 4. Smt. Yogini Laxman Kulkarni R/o Yawal, Dist-Jalgaon PETITIONERS VERSUS Bhikaji Pandurang Kulkarni R/o Yawal, Dist-Jalgaon RESPONDENT ....... Mrs.C.S.Deshmukh h/f Mr.M.G.Deokate, Advocate for petitioners Mr.M.M.Patil (Beedkar), Advocate for respondent ....... [CORAM : A.V.POTDAR, J.] DATE : 19th June 2009 ORAL JUDGMENT : 1. By the present writ petition, under Article 227 of the Constitution of India, the petitioners / original plaintiffs have {2} challenged order dated 17.09.2008 passed below Exhibit-54 in RCS No.76/1996 by Civil Judge, Junior Division, Yawal. 2. Rule. Rule made returnable forthwith. With the consent of the parties, the writ petition is taken up for final hearing at the stage of admission itself. 3. The facts, which gave rise to file the present petition, can be summarized as under- The petitioners have filed RCS No.76/1996 in the Court of Civil Judge, Junior Division, Yawal, for perpetual injunction in respect of ½ share on the northern side of the property mentioned in plaint para No.1. It is contended in the plaint that there was partition between the father of present petitioners No.1 to 3 and husband of petitioner No.4 and the respondent, who are the real brothers and in the said partition, ½ northern portion of the suit property mentioned in plaint para No.1, came to the share of the predecessor in title of the petitioners and remaining ½ portion came to the share of the respondent. In the said suit, an application for interim injunction was filed at Exhibit-6. The suit was filed on 27.09.1996. After notice, respondent appeared and resisted the suit by filing say / written statement on 11.10.1996. In paragraph No.7 and 8 of the written statement, the respondents have denied the theory of oral partition and also denied that in the said partition northern side ½ portion from the suit property was {3} given to the share of predecessor in title of the petitioners. Specific case is made out in para No.8 that there was oral partition between the predecessor in title of the petitioners as well as respondent and their other brother. According to the respondent, in the said partition, the entire property, mentioned in plaint para No.1, was given to the share of the respondent and the petitioners or their predecessor in title have nothing to do with the same and hence prayed for dismissal of the suit and interim injunction application. It further appears that thereafter, an application came to be moved at Exhibit-16 on 20.10.1996 for amendment in the plaint wherein amendment was sought to introduce para No.3-A, after original para No.3 by incorporating words “the petitioners are owners of the ½ share towards northern side portion of the suit property” and by introducing para No.9-A after original para No.9 seeking declaration to that effect i.e. consequential relief in view of the facts pleaded in the plaint as well as the amended plaint. It appears that vide order dated 07.02.1997, the said application was partly allowed by the CJJD, Yawal by which the amendment to the effect of addition of para No.3-A after original para No.3 is allowed. However, amendment to add para No.9-A i.e. the consequential relief, after original para No.9, was rejected. It is admitted fact that the order dated 07.02.1997 is not challenged by the petitioners. It further appears that in due course the suit came up for {4} hearing, after framing issues and completing necessary formalities. At this stage an application (Exhibit-54) came to be filed by the petitioners / plaintiffs seeking amendment in the plaint by adding prayer clause that the petitioners be declared as owners of the suit property, as according to them, now, while drafting affidavit of examination in chief, they realized that their title is denied by the respondent in the written statement. After hearing both the sides, the application is rejected by the trial court vide order dated 17.09.2008 and the said order is under challenge in this petition. 4. In this backdrop, heard learned counsel for petitioners followed by the arguments of learned counsel for respondent. According to learned counsel for petitioners, the impugned order suffers from irregularities, as even if the amendment is allowed after the span of 11 years, the same will not cause any prejudice to the rights of the respondent / defendant and it is necessary to allow the amendment for just decision of the suit. Learned counsel for petitioners placed reliance on the ruling reported in 2006 (6) Mh.L.J. 425 in the matter of “Menino Fernandes V/s Gabriel Fernandes” wherein it is observed “A plea justifying the claim for restoration of possession by way of amendment in a suit filed by plaintiff for injunction simpliciter – Not inconsistent or disruptive of the original plea.” The subject matter of this petition is that suit for simpliciter injunction was filed by the petitioners / plaintiffs against the respondent and as no interim protection was granted during the pendency of the proceedings, it is alleged that the {5} petitioners / plaintiffs lost possession of the property for which the proceedings were initiated and hence by way of amendment the suit simpliciter for injunction was converted into suit for possession. It is settled legal principle that if in the suit for simpliciter injunction parties contend that they lost possession during the pendency of the suit, the suit for simpliciter injunction can be converted into suit for possession and the same would not amount to change in the nature of suit. Further reliance is placed on the ruling reported in 2007 (1) Mh.L.J. 331 in the matter of “Bharat Petroleum Corporation Ltd. V/s Precious Finance Investment Pvt. Ltd.,” towards head note “O” of which observations are in para 33 (xiv). In para 33 of the judgment itself 21 guidelines are given as to how to deal with the amendments when during the pendency of the proceedings application is moved for amendment in the plaint or in the written statement. Whether the ratio laid down therein is applicable to the present case or not will be considered in latter part of the judgment. 5. Learned counsel Mr.M.M.Patil (Beedkar) supports the order of the trial court and objected to allow the amendment mainly on three grounds. Firstly, similar application moved by the petitioners / plaintiffs vide Exhibit-16 came to be rejected way back in the year 1997 and once the application for amendment is rejected then again the same issue cannot be reopened by way of subsequent application as well as also in extra ordinary writ jurisdiction of this Court. Secondly, it is urged that considering {6} attitude of the petitioners, to prefer such application is nothing but protracting the matter, which will change the nature of the suit and would cause serious prejudice to the rights of the defendant and lastly, as the trial has already commenced, then under the amended provisions of Civil Procedure Code, by virtue of amendment in the year 2002, the said amendment cannot be allowed. 6. Considering these submissions, firstly it is necessary to deal with the question as to whether if the trial is commenced, can the application for amendment be entertained or not. For this purpose, ratio laid down in the recent ruling of the Apex Court, reported in 2009 (1) ALL MR 471 in the matter of “Vidyabai V/s Padmalatha” needs to be referred. It is observed in para 14 of the said judgment that - “It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled the amendment to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts embargo on exercise of its jurisdiction. The Court’s jurisdiction, in case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint” This is requires to be considered in the light of observations in para 7 and 8 of this judgment wherein it is observed that in {7} exceptional cases, even if the trial has commenced and if the court is of the view that it is necessary to allow the amendment application not only in the interest of justice, but also to decide the dispute in question between the parties to the proceedings once for all, then the amendment to be allowed. 7. Thus, from the observations of the ruling referred above, one fact is clear that even after commencement of the trial, in exceptional cases, the court, if satisfied that it is necessary to allow the amendment, can allow the amendment application. 8. Now, coming to another question, which is raised before me that once similar type of application was rejected way back in the year 1997 then whether again that issue can be opened, after lapse of 11 yeas, as that order is not challenged by the petitioners during this period. For this purpose, it is necessary to read the application Exhibit-16 and the order passed on 07.02.1997, by the learned Civil Judge, Junior Division, Vide application Exhibit-16, two amendments were sought for i.e. to introduce para 3-A after original para 3 by which the proposed amendment was that the petitioners are in possession of ½ share on northern side, as owners. It is pertinent to note that this part of amendment was allowed by the trial court. However, surprisingly, the next part of the application Exhibit-16 that the petitioners want to amend para 9-A after original para 9, which is a prayer clause that they be declared as owners of the property, came to be {8} rejected by the trial court. At this stage it is to bear in mind that if the pleadings are allowed to be amended, however the consequential reliefs based on those pleadings are refused, can it be said that the order is good in law. The answer is in negative, as the formal amendment is allowed but the relief based on the same is rejected. It is as good as the earlier part of the amendment is also rejected. No doubt, by the proposed amendment the petitioners are claiming not only the similar but the same amendment, but at a very belated stage i.e. after 11 years. The reasons, which are quoted in opening part of the application that the petitioners / plaintiffs realized that their title is denied by the respondents when the petitioner started drafting of affidavit of examination in chief. True, this statement cannot be accepted, but at the same time the pleadings are to be read as a whole and not in part. On bare reading of the plaint filed by the petitioners as well as the written statement of the respondents, the same disclose that the petitioners are claiming their possession on the basis of title acquired. Accordingly, they were allowed to amend the plaint by introducing para No.3-A by virtue of earlier amendment application and if it is so, then if the consequential relief in the prayer is allowed then it will not change the nature of the suit as well as no prejudice would cause to the respondents. In the premise, the observations of the trial court in rejecting the application on 17.09.2008 are not in accordance with law and hence the same require to be quashed and said aside. Accordingly, order dated 17.09.2008, passed below Exhibit-54 in RCS No. {9} 76/1996 by the Civil Judge, Junior Division, Yawal, is hereby quashed and set aside. The application Exhibit-54 is hereby allowed with a rider that the petitioners to pay requisite court fees, so far as this prayer is concerned. 9. Rule is thus made absolute as indicated above. Writ petition stands disposed of with costs of Rs.1000/- [A.V.POTDAR, J.] drp/wp1537-09