1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1371 OF 2010 (Smt. Madhuri R. Kolhe and another ...versus... State of Maharashtra and others) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 31, 2010. Heard Mr.K.K.Pillai, the learned counsel for the petitioners/plaintiffs, Mr. R.M.Ahirrao, learned counsel for respondent nos.6&7 and Mr. C.N.Adgokar, learned A.G.P. for respondent nos.1 to 4. Learned AGP states that his office has not yet received the copy of writ petition. However, considering the nature of controversy, I find that the petitioner is not seeking any relief as such against respondents no.1 to 4 in the matter. Mr. Pillai, the learned counsel for the petitioners/plaintiffs has pointed out that the Regular Civil Suit No. 956 of 2006 came to be filed on 04/8/2006 for the relief of declaration and for grant of injunction to protect the possession. The petitioners/plaintiffs were not aware of the decree for partition, passed in Regular Civil Suit No. 62/1972 by the Court of Civil Judge, Junior Divn., Ramtek, against their vendors and they purchased the suit property in ignorance thereof. They were placed in possession and after more than 12 years of the adjudication in appeal, the revenue authorities came to dispossess the petitioners 2 under the guise of executing that decree. Hence, the suit came to be filed. After the suit was filed, a prayer for temporary injunction to protect the possession was also made and it came to be rejected. Against that rejection, Misc. Civil Appeal came to be filed, but in the meanwhile respondents no.6 & 7 in purported execution of the decree, forcibly took possession of half portion of the property belonging to the petitioners. The petitioners, therefore, wanted to add this subsequent dispossession and also add prayer for restoration of the possession. The application for amendment under Order VI Rule17 of the Code of Civil Procedure, moved vide Exh.29, has been erroneously rejected by the trial court. Mr. Ahirrao, the learned counsel for respondents no.6 & 7 and Mr. Adgokar, the learned AGP support the impugned order. Mr. Ahirrao, the learned counsel states that petitioners were all the while aware of the execution proceedings and they were not in the possession even on the date on which the suit came to be filed. According to him, taking advantage of rejection of prayer for temporary injunction, a suit erroneously filed for protection of possession, is now sought to be converted into a suit for restoration of the possession. He argues that the suit initially ought to have been filed for recovery of the possession and not for protection of possession. He, therefore, states that the learned trial court has correctly appreciated the controversy and rejected the prayer for 3 amendment as the nature of the suit undergoes a change. The facts above clearly show that the suit does not undergo any change in any manner. The subsequent event as alleged of loss of possession is given as reason for carrying out the amendment. The correctness of that story cannot be the subject matter of investigation at this stage and it is open to the respondent nos.6 & 7 (defendants) to point out to the trial court that the suit on the date of its institution could have been the suit for recovery of the possession and there is no subsequent loss of possession. It is to be noted that burden to prove the loss of possession is upon the petitioners/plaintiffs. The learned trial court has not correctly applied its mind and has found that proposed amendment is not necessary to decide the controversy between the parties and the claim made by the plaintiffs. It overlooked the fact that the petitioners/plaintiffs could have filed a suit separately for restoration of the alleged loss of possession. The impugned order dated 30/11/2009 passed below Exh.29 is quashed and set aside. The application (Exh.29) is allowed. The petitioners/plaintiffs to carry out necessary amendment to their plaint by 15th April, 2010. Liberty to the respondents to carry out consequential amendment to their respective written statements thereafter, in accordance with law. It is made clear that all the contentions and objections raised by respondents no.6 & 7 are kept open and can be considered by the learned trial court while deciding the suit on merits. 4 With these directions, the writ petition is allowed. Rule accordingly. No order as to costs. JUDGE Diwale