kbp 1 1613-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1613 OF 2008 Shamrao Kedari Pawar and ors. ..Petitioners Vs. Shankar Bhujinga Pawar since deceased through Lrs. ..Respondents ......... Mr.M.S.Parasnis, for petitioners. Mr.Shivraj Patil h/f.Mr.Sandesh D.Patil, for respondent nos.1A, 1C, 1D, 2 and 3. ......... CORAM : A.S.OKA, J.. DATE : 7 th OCTOBER, 2009. P.C. : 1] Considering the narrow controversy involved, the writ petition is taken up for final disposal. 2] The petitioners are the original plaintiffs and respondents are the defendants. The petitioners filed a suit claiming declaration that they have acquired easmentary rights by prescription in respect of the property described in paragraph 1 of the plaint. They also claimed easementry rights over a way and water canal which is the subject matter of the suit. An application for amendment of plaint was made by the petitioners on the ground that during the pendency of the suit the respondents defendants had damaged the water canal. The averments made on the basis of said allegation were sought to be added kbp 2 1613-08.sxw and a prayer for mandatory injunction for restoration of status quo ante was sought to be added. By a cryptic order dated 1 st December, 2007, the trial court has declined to grant the prayer for amendment. 3] After having considered the submissions of learned counsel for the parties, I find that the amendment ought to have been allowed. The opposition of the learned counsel for the respondents is that the proposed amendment totally changes the nature of suit. A reliance is placed on a decision of the Madras High Court in the case of C.Muthupandian Vs. Ramasamy Thevar alias Kattiamaram Ramiah Thevar and others [AIR 1995 MADRAS 277] and a decision of Gauhati High Court in the case of Subodh Kumar Roy Vs. Md.Hyder Ali [AIR 1994 NOC 78]. 4] The allegation made in the application for amendment is that during the pendency of the suit the respondents damaged the suit property. Therefore, a prayer was sought to be added for restoration of status­quo ante. The said amendment will obviously not change the nature of the suit. Merely because the amendment is allowed it does not mean that the allegations made in the amendment are accepted by the court. The petitioner will have to prove their case which is sought to be pleaded by way of amendment. Even if the amendment is allowed, all contentions of the defendants including the contention regarding the bar of limitation is always open. In the circumstances, the impugned order is completely erroneous and deserves to be quashed and set kbp 3 1613-08.sxw aside. Hence, I pass the following order:­ (a) The impugned judgment and order dated 1 st December, 2007 is quashed and set aside and the application exhibit 18 made by the petitioners is allowed. (b) After the amended copy of the plaint is served to the respondents, it will be open for the respondents to file an additional written statement within a period of eight weeks from the date of service of the amended copy. All the contentions of the respondents are kept open. (c) Writ petition is allowed in the above terms. ( A.S.OKA, J. )