GAIMUKH DEOSTHAN Vs. YOGESH

JUDGEMENT

(1.) Rule with the consent of the parties made returnable forthwith and heard.

(2.) This petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 19/03/2011 passed by the learned 2 nd Joint Civil Judge, Senior Division, Nagpur, by which order the application for amendment of the plaint filed by the petitioners came to be rejected.

(3.) The facts involved in the above petition in brief can be stated thus The petitioner Trust was created by one Ganpatrao Pande. The petitioner Trust was having its properties at several places the said properties included the property known as Ganesh Bhuvan, Civil Lines, Nagpur. It is the case of the petitioners that the respondents herein are not at all concerned with the said property, Ganesh Bhuvan. It is further the case of the petitioners that the respondents entered into the said premises of Ganesh Bhuvan and took forcible possession of an area of 3000 sq.ft. on 05/05/2004. This resulted in, the plaintiffs petitioners filed Special Civil Suit No.777/2004 under Section 6 of the Specific Relief Act. It is the case of the plaintiffs that though the suit has been filed under Section 6 of the Specific Relief Act, through inadvertence the prayer for restoration of possession and removal of illegal construction and encroachment remained to be made. It is further the case of the plaintiffs that the defendants considering that it was a suit under Section 6 of the Specific Relief Act and therefore, being also one for possession, filed the written statement accordingly. In the said suit the plaintiffs filed affidavit on evidence and further examination in chief on behalf of the plaintiffs was also recorded. It appears that the respondents herein moved an application for dismissal of the suit on the ground that there was no prayer for possession in the suit and, therefore, the suit filed under Section 6 of the Specific Relief Act was not maintainable. The petitioners thereafter on 16 th October, 2010 moved an application for amendment of the plaint.