1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7890 OF 2010 1 Mainabai Shrimant Pawar age 50 years, occ. Agril r/o Mothewadi, Tq. Majalgaon District Beed. 2 Kaverabai Prabhakar Pawar age 37 years, occ. Household r/o Mothewadi, Tq. Majalgaon District Beed. 3 Rukhmanbai Ashok Jagtap age 34 years, occ. Agril r/o Mothewadi, Tq. Majalgaon Dist. Beed. 4 Subhash Gangaram Gaikwad age 32 years, occ. Agril. r/o Dharur, Tq. Dharur Dist. Beed. .. PETITIONERS VERSUS Limbaji s/o Sahebrao Gonde age 62 years, occ. Agri r/o Mothewadi, Tq. Majalgaon District Beed. .. RESPONDENT Mr.B.S. Kudale, advocate for the petitioners. Mr. V.B. Mantri, for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 14 th OCTOBER, 2010. 2 ORAL JUDGMENT : 1 Heard. 2 Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final disposal at admission stage. 3 Petitioners / original plaintiffs instituted Regular Civil Suit no. 276/2008 claiming a decree of perpetual injunction against the defendant. Defendant caused appearance and resisted the suit by filing written statement. It is stated that issues in the matter are framed and the suit is at the stage of recording of evidence. Evidence of one of the witnesses is recorded. Petitioners presented application on 18-3-2010 requesting the court to permit them to amend the pleadings and incorporate alternate prayer in respect of recovery of possession in the event the plaintiffs fail to establish their possession. Application was opposed by the defendant contending that the same is presented at belated stage and in view of provisions of Order 6 Rule 17 of the Code of Civil Procedure, the application tendered at belated stage shall not be considered. It is also contended that the prayer made in respect of recovery of possession by the plaintiff is likely 3 to defeat the defence of limitation which is available to the defendant. The trial court has proceeded to reject the application in view of order passed on 27-7-2010 and the said order passed by the trial court is subjected to challenge in this petition. 4 Admittedly, the suit is presented claiming decree of perpetual injunction. It cannot be controverted that an alternate relief claiming possession in a suit seeking decree of declaration and injunction is permissible. The parties are entitled to claim alternate relief and may also raise inconsistent pleadings which itself cannot be a ground for rejection of the application. So far as delay occurred in presenting the application is concerned, it has been contended that the prayer is not made because of inadvertence and it is a mistake on the part of the plaintiffs and their counsel. The parties are from rural area. This aspect of the matter is to be given some weightage while deciding the controversy. It also cannot be controverted that the provisions of Rule 17 Order 6 of the Code of Civil Procedure are directory in nature. So far as the objection raised by the defendant that the amendment is likely to defeat the defence of limitation available with the defendant is concerned, care can be taken by directing the trial court to consider the issue of limitation while taking into account the 4 alternate prayer made by the petitioners / plaintiffs by way of amendment. In the given circumstances, it is also required to be directed to the trial court that the amendment permitted shall not relate back to the date of presentation of the suit and will have an effect from the date of presentation of application of amendment i.e. from 18-3-2010. These directions would meet the objections raised by the defendant in respect of availability of defence of limitation. Reliance is placed on the judgment in the matter of Sundar Kumar Sharma vs. Makhan Singh reported in 2009 AIR SCW 6131 wherein the Apex Court has observed that merely because the application is presented at belated stage, need not prompt the courts to reject the application but it is to be found whether the real controversy between the parties could be resolved by permitting amendment. In my opinion, the present case calls for causing interference in favour of the petitioners and inconvenience caused to the defendant / respondent herein can be compensated by directing the petitioners / original plaintiffs to pay cost. 5 Writ petition is thus allowed. Order passed by the Jt. Civil Judge, Sr.Dn., Majalgaon on 27-7-2010 below exh. 31 in Regular Civil Suit no. 276/2008 is quashed and set aside, subject to payment of cost of Rs.10,000/- by the petitioners. The amount of cost to be deposited within four weeks 5 from today. In the event of deposit of cost by the petitioners, original defendant shall have liberty to withdraw the same. Application tendered by the petitioners at exh. 31 in Regular Civil Suit no. 276/2008 shall be deemed to have been allowed. Rule is accordingly made absolute. 6 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp7890.10.odt