VISHNU KESHAV KHATAVKAR Vs. SRIPATI MAHATARPA RAVUL

JUDGEMENT

(1.) BY this petition the petitioners who are the legal representatives of the original plaintiff Vishnu K.Khatavkar, have impugned the order dated 9th July, 1993 passed below Exhibit 46 in Regular Civil Suit No.8 of 1986. The Civil Judge, Junior Division, Gargoti, by the aforesaid order has rejected the application for amendment moved by the petitioners herein. It was the case of the petitioners that during the pendency of the suit and more so after the application for temporary injunction had been rejected by Appellate Court, they had been dispossessed from the premises and consequently they have sought an amendment to include a prayer for recovery of possession. The trial Court has rejected the same on the ground that the petitioners appeared to be negligent and they have not mentioned the clear date as to when the cause of action arose for possession of the suit land and as such on account of vagueness the application should be rejected.

(2.) MR .Dalvi, learned Counsel appearing for the petitioners contendes that the order of the trial Court is without jurisdiction in as much as none of the predicates which warrant rejection of application for amendment have been considered by the trial court and all that the trial court proceeded on is that the Application is vague. He contends that the amendment application could have been rejected if it was barred by limitation, if it introduced a new cause of action and such like matters. In this case all that the Petitioners were seeking is to seek an alternative relief of possession as they have been dispossessed during the pendency of the suit. It is pointed out by Shri Dalvi that the application for temporary injunction was rejected on 24th July, 1986 by the trial Court and the Appeal preferred against the same was rejected on 20th August, 1990. In the circumstances he points out that the trial Court ought to have granted the application for temporary injunction.

(3.) THE contentions of Shri Paranjape can be considered at the stage if the application for amendment is allowed whereby he can raise all the pleas namely that the Petitioners are not in possession and consequently the relief of injunction should be refused and/or that the Respondents are in possession holding an interest adverse to the petitioners. All such pleas would be available to the Respondents if the amendment is allowed.