1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 360/2011 (Natthu Dayaram Kasalkar VERSUS Sahebrao Lahanuji Mehar) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.R. Deshpande, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 21 , 2011 . By this petition, the petitioner impugns the order passed by the trial Court on 11.01.2011 allowing the application filed by the respondent-plaintiff for amendment of the plaint so as to incorporate the prayer clause for possession. The respondent is the original plaintiff. It was the case of the plaintiff that the defendant-petitioner had encroached upon the eastern side of his plot and had unauthorizedly occupied an area of 5 X 60 feet (i.e. 300 Sq.ft.) by growing trees thereon. The plaintiff claimed a permanent injunction restraining the defendant-petitioner from continuing the illegal encroachment on plot no.18 of the plaintiff. Though it was specifically pleaded by the plaintiff in paragraphs 4 and 5 of the plaint, it is the case of the plaintiff that inadvertently, the prayer clause as regards possession remained to be incorporated in the plaint. Hence, the plaintiff filed an amendment application under Order VI Rule 17 of the Code of Civil Procedure for amending the plaint so as to incorporate the prayer clause for seeking possession of the encroached portion i.e. the suit property. 2 The amendment application was strongly opposed by the defendant-petitioner mainly on the ground that the parties had tendered evidence in this case and there was no sufficient cause shown by the plaintiff for belatedly filing the amendment application after the commencement of the trial. The trial Court, however, on an appreciation of the submissions made on behalf of the parties and on perusal of the pleadings, by the impugned order dated 11.01.2011, allowed the application filed by the plaintiff. On hearing the learned counsel for the petitioner and on perusal of the impugned order, the pleadings and the written statement, it appears that the trial Court did not commit any error in allowing the amendment application. It is necessary to note that it was categorically pleaded by the plaintiff in paragraph 4 of the plaint that the defendant had unauthorizedly encroached upon 300 sq. ft. of land on the eastern side of plot no.18 by growing trees thereon. The fact about the encroachment was specifically denied by the defendant. It was also denied that the defendant had extended his compound wall on the aforesaid area. It appears that though the plaintiff sought a permanent injunction restraining the defendant from continuing the illegal encroachment on plot no.18, the plaintiff inadvertently failed to incorporate the prayer clause for seeking possession of the encroached portion. It is stated in the application for amendment that inadvertently the plaintiff did not claim the relief of possession of the area of 5 X 60 feet, which was allegedly encroached by the defendant and in the absence of the aforesaid relief, the suit would have been rendered infructuous and the same would have resulted in multiplicity of suits. 3 The trial Court rightly considered the pleadings of the plaintiff and the defendant and found that the proposed amendment did not change the nature of the suit and in fact it was necessary for effectively deciding the lis between the parties. The Court held that by the proposed amendment, the plaintiff was not proposing to bring a new bundle of facts on record but, was merely seeking a relief of possession on the facts pleaded in the plaint and the evidence tendered by the parties on the facts, which were already pleaded. The non-incorporation of the prayer clause as regards possession was an inadvertent mistake and, hence, the trial Court exercised its discretion in allowing the amendment application even after the amendment of the provisions of Order VI Rule 17 of the Code of Civil Procedure. Since the proposed amendment was necessary for determining the real question in controversy between the parties and ultimately do justice in the matter, the trial Court rightly allowed the amendment application. The judgment reported in 2009(4) Mh.L.J. 30 (Vidyabai & others Versus Padmalatha & another) and relied on by the counsel for the petitioner cannot be helpful to the petitioner for seeking reversal of the order passed by the trial Court. In fact, it is observed by the Hon’ble Supreme Court in the reported judgment that it is the primary duty of the Court to decide as to whether the amendment is necessary for deciding the real dispute between the parties in the case. In the instant case, the proposed amendment was necessary for deciding the lis between the parties, it did not change the nature of the suit and the same could have prevented the multiplicity of litigation. 4 Since there is no jurisdictional error in the order passed by the trial Court, the writ petition is dismissed with no order as to costs. JUDGE APTE