LATIFDDIN SHAMSHUDDIN Vs. PANDURANG KRISHNAJI HOLE DECEASED BY LEGAL REPRESENTATIVE PURBATABAI WD/O PANDURANG HOLE

JUDGEMENT

(1.) THIS revision application is filed by the original defendants challenging the Order of the trial Court allowing the plaintiffs application for amendment of plaint.

(2.) THE non -applicant -plaintiff filed a suit for perpetual injunction against the defendants to restrain them from obstructing the suit passage. The said suit was filed in November 1974 on the basis of alleged obstruction which had taken place in the same year a little earlier. After the suit progressed, the plaintiff had applied for interim injunction, but the same was refused. The lower appellate Court also refused to grant perpetual injunction finding that the defendants had erected a fencing across the field and had planted orange orchard in that area. The lower appellate Court found that since there was a complete ouster the plaintiff ought to have claimed mandatory injunction for removal of the obstruction by the defendants.

(3.) THIS amendment was proposed on 29 -6 -1981 which was opposed by the defendants. The trial Court, however, allowed it and also directed the defendants to make the consequential amendment. This Order of the trial Court, allowing the amendment on 10 -8 -1981, was challenged by the defendants in the High Court by a revision. That was civil revision application No. 587 of 1981. This Court, by its Order dated 13 -11 -1981, allowed the said revision application, set aside the order allowing the amendment and remanded the case to the trial Court for deciding whether the amendment for the new relief of mandatory injunction as proposed is barred by limitation at the time it was proposed, and whether the amendment changes the nature of the suit.