IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO.4822/2007 Vijaykumar Ganeshlal Jaiswal ..vs.. Gram Panchayat Gadchandur =================================== CORAM: S.R. DONGAONKAR,J. DATE:18.6.2008. Heard Mr. A.S.Chandurkar, Advocate for the petitioner and Mr. Pantawane, Advocate for respondent. Notice was issued to the respondent for final disposal of the petition at the stage of admission itself. Accordingly the parties are heard on merits. 2] By this petition, though styled under article 226 and 227 of the Constitution of India, it appears; relief sought is under article 227 of the Constitution of India. 3] Petitioner is challenging the order of dismissal of his application for amendment under Order 6 Rule 17 of C.P.C. which was moved at the stage of appeal which he had filed against dismissal of his suit. The suit was brought by the petitioner for removal of encroachment by the respondents. The said suit was dismissed. Against that judgment the petitioner preferred an appeal bearing Civil Appeal No.18/2001 before the Ad-hoc District Judge -2, Chandrapur. 4] During the pendency of that appeal, appellant moved an application for amendment to the plaint under Order 6 Rule 17 C.P.C. The amendment was sought on the ground that subsequent event of measurement of land through T.I.L.R. dated 22.1.2007 was to be brought on record. According to the petitioner that event was necessary to be brought on record for final, complete and judicious adjudication of the matter. 5] The respondent had opposed that application. Learned appellate Judge found that the proposed amendment was changing the nature of the suit. According to him it was to create a new foundation for the case. He also found that there was one application moved by the applicant on record for appointment of Commissioner at Exhibit 31 in the Lower Court and appellant – plaintiff would have got opportunity for measurement through D.I.L.R. at that time, but that application was not pressed and now at this stage of appeal, appellant had come up with the case for amendment to the plaint which is not bona fide. Hence he rejected that application. 6] Learned counsel for the petitioner relying on the judgment reported in 2007(5) Mh.L.J. 536 -Janardan Urkuda Waghmare ..vs.. Ratanlal Kashinath Gudekar , wherein it has been observed: “Initially, the petitioner claimed that 1 ½ feet space was not left by the respondent towards the house of the petitioner, so also on his side,. An application for grant of temporary injunction filed by the petitioner was rejected. The respondent hen made construction on his plot. The petitioner got the land measured from a retired Government surveyor, who reported that 9.43 sq. mtrs of land of the petitioner was encroached by the respondent. The petitioner thereafter filed an application for amendment of plaint. The trial court rejected the said application mainly on the ground that it amounts to withdrawal of important admission. Held, that the petitioner who ought to have got his land measured before filing the suit did it so at a later point of time and then prayed for amendment for bringing the said subsequent development on record and making related prayers. There is neither any inconsistency nor any withdrawal of admission on the art of the petitioner by moving the said application. The petitioner merely wants to correct his mistake which cannot be said to be impermissible. In view of this the impugned order dated 25.4.2007 is quashed and set aside and the amendment application is allowed.” contended that in the similar facts this court had allowed the application for amendment to the plaint. As such according to him, the petition needs to be allowed by setting aside the order of the learned Ad-hoc District Judge-2, Chandrapur, impugned in this petition. 7] As against this, learned counsel for the respondent has in specific, relying on the observations of the learned appellate Judge in the order to the effect “Admittedly there was one application moved by the applicant on record for appointment of the Commissioner at Exh.31 in the Lower Court and appellant – plaintiff would have got opportunity for measurement through D.I.L.R. at that time but the same application has not been pressed.” contended that the application of the petitioner for amendment in appeal was an afterthought in view of the dismissal of his suit and therefore his petition is liable to be dismissed. 8] In order to assess the rival contentions of the parties, it need to be seen from 2007(5) Mh.L.J. 536 -Janardan Urkuda Waghmare ..vs.. Ratanlal Kashinath Gudekar, cited supra, that in that case application for amendment was allowed in the 'suit'. In the present case suit of the plaintiff was dismissed. Here in the suit a specific application was moved by the petitioner himself to get his land measured through D.I.L.R., but the said application was not pressed. Therefore, as observed by the learned appellate Judge and rightly, the petitioner had not availed opportunity for bringing true facts on record by getting the land measured, through D.I.L.R. as the suit was on the basis private measurement. He had come up in the appeal and then moved an application for amendment of the plaint obviously to overcome the ground on which suit was dismissed.. 9] In these circumstances, I am of the opinion that observations in 2007(5) Mh.L.J. 536 -Janardan Urkuda Waghmare ..vs.. Ratanlal Kashinath Gudekar (cited supra) are not at all attracted. The reasons recorded by the learned appellate Judge for rejection of the application for amendment of the petitioner, can not be said to be not well founded and incorrect. In these circumstances petition is devoid of any merits. Therefore, the same is dismissed. JUDGE smp.