SABERABIBI Vs. SHAH JASWANTLAL KANTILAL

JUDGEMENT

(1.) RULE . Learned advocate Shri M.A.Memon waives service of rule on behalf of respondents Nos.3/1, 4,5 and 6. Learned advocates appearing for the parties jointly submit that considering the nature of dispute arising in this petition, service of rule is not necessary on respondent No.1. I have heard learned advocates appearing for the parties for final disposal of the petition.

(2.) PETITIONER is the original plaintiff who has filed regular Civil Suit No.5 of 2000 (new). During the pendency of the suit, the petitioner moved an application Ex.117 seeking amendment in the suit. By way of amendment, primarily, the petitioner wanted to add a prayer to the effect that during the pendency of the suit, since he is forcibly dispossessed, possession should be restored to him. This application was filed on 18.8.2006. The Trial Court passed the impugned order dated 21.12.2006 rejecting the application of the petitioner. For doing so, the learned Judge relied on following factors:

(3.) AT the outset, it may be noted that the amendment in order 6 rule 17 of the Code of Civil Procedure was made applicable with effect from 1.7.2002. The suit was instituted in the year 1992. In that view of the matter, the limitation put on the power of the Court to permit amendment cannot be applied in the present case. Insofar as the question of irreparable loss or prejudice to the respondents is concerned, I find that the learned Judge committed a serious error in this regard. The case of the petitioner has been that after filing of the suit and despite interim injunction granted by the competent Court, he was forcibly dispossessed. If the petitioner ultimately succeeds in establishing before the Trial Court, his right would seriously suffer if there is no corresponding prayer for restoration of the possession in the suit.