1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1478 OF 2009 Kuber Dhulappa Waghmode and others Petitioners versus Balbhim gangaram (Jadhav) Kaikadi and others Respondents I.M.Khairdi for petitioners. N.P.Shimpi for respondent no.1. CORAM : A.S.OKA, J. DATE : 25th March 2010 PC :- 1. Submissions of the counsel for the petitioner were heard on the earlier date. By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 6th November 2008 passed by the learned District Judge, Solapur. 2. The petitioners are the original plaintiffs. The petitioners filed a suit for a declaration of ownership and injunction. Later on the plaint was amended and a decree for possession was sought. The suit was decreed by the Trial Court. An appeal against the said decree preferred by the respondent no.1 who is original defendant no.2 is 2 pending in the District Court. In the pending appeal, an application was made by the petitioners for amendment of the plaint for adding a prayer in the suit to the effect that the Court may issue a direction under clause (c) of sub-rule 1 of rule 12 of order XX of Code of Civil Procedure, 1908 for holding an inquiry for fixing the mesne profits. By the impugned order the said application has been rejected. 3. The learned counsel for the petitioners submitted that the prayer which was sought to be added in the plaint was in fact a prayer of formal nature. All that the petitioners were seeking is a prayer for issuing direction for holding an inquiry as regards mesne profits. He submitted that there was no occasion to reject the said prayer. Learned counsel for the first respondent submitted that amendment was sought belatedly. He submitted that the decree for possession has been passed by the Trial Court in April 1988 and, therefore, while deciding the appeal, if a direction is issued for holding an inquiry regarding mesne profits, the Trial court will determine the mesne profits from April 1998 thereby causing prejudice to the first respondent. 4. I have carefully considered the submissions. The only amendment sought in the plaint was for incorporating a prayer for issuing a direction for holding an inquiry regarding mesne profits. 3 Even if such amendment is permitted to be carried out, all contentions of the original defendants will naturally remain open including the contention regarding bar of limitation and the contention regarding the date from which the mesne profits can be granted. However, there is no ground to deny an opportunity to carry out the amendment. 5. Hence, the petition must succeed and I pass following order :- A) The impugned order is quashed and set aside and application at Exhibit-59 is hereby allowed; B) The amendment shall be carried out within two weeks from the date on which writ of this order is received by the Appellate Court; C) The Appellate Court will permit the defendants in the suit to file additional written statement dealing with the amendment; D) As observed already, all contentions of the defendants are expressly kept open; E) Writ Petition is allowed in the above terms with no order as to costs. (A.S.OKA, J.)