1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.29 OF 2009 Subhash Bhanudas Patil .. Petitioner Versus Indubai Tukaram Kundale & Anr. .. Respondents Mr.Pratap Patil for petitioner None for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 20th April 2009. P.C. . Affidavit of service has been filed by Mr.Patil, but none appears on behalf of respondents. Petitioner has challenged in this petition an order dated 11th July 2008 passed by 2 the Civil Judge, Junior Division, Islampur below Exh.35 in R.C.S.No.321 of 2000. 2. Petitioner filed this suit in the said Court and prayed that the respondents defendants be restrained by a permanent order and injunction from in any manner obstructing the petitioner in his use and enjoyment of the suit property nor he should be dispossessed therefrom forcibly. 3. There is a written statement filed by the defendants - respondents and it appears that an application for amendment was made by the present petitioner - plaintiff in which he sought to incorporate subsequent events. Those subsequent events are filing of suit by the respondents against him being Regular Civil Suit No.492 of 2000, laying their claim on a portion of the suit property. It appears that plaintiff desired to place on record his assertion that he should not be ousted from the suit property also on the 3 basis of his easmentary rights. 4. This amendment application is rejected by the trial court holding that inconsistent pleas are being raised and they cannot be permitted. At the same time, learned Judge observed that there is a distinction between the easement of necessity and easement by prescription. Claiming ownership rights and easementary rights are independent claims and, therefore, cannot be incorporated. 5. It appears that the trial court has been influenced to a great extent by the fact that respondents - defendants have filed a suit against the present petitioner - plaintiff. Further he seems to have been influenced by the fact that the amendments are proposed only after disposal of Miscellaneous Civil appeal No.5 of 2001. Either which way one looks at it, it is not possible to sustain the order under 4 challenge. If there was delay in making application for amendment, petitioner- plaintiff could have been directed to pay costs to compensate the respondents - defendants so also impose conditions with regard to expeditious disposal of the case. If the suit claim is of a permanent injunction and it is based on the claim of joint possession and, thereafter, the joint possession is sought to be sustained on the basis of easementary rights, I do not see as to how at this stage any prejudice is being caused to the respondents. It is not as if the Court is accepting the pleas of petitioner - plaintiff. Mere permission to incorporate them by no stretch of imagination can be construed as any adjudication or trial of the same. The merits of the amendment need not be considered and that has been done precisely in this case. In the result, the order under challenge is clearly vitiated by errors apparent on the face of record and is wholly unsustainable. The order accordingly is 5 set aside. Application for amendment of the plaint stands allowed. Petitioners shall carry out the amendment within four weeks from the date of receipt of this order and serve amended plaint within two weeks thereafter. However, he shall pay costs quantified at Rs.1000/- to the defendants in the trial court. (S.C.Dharmadhikari, J)