Raosaheb Kishanrao Poul Vs Santosh Shridharrao Paithankar and Others

. The suit is filed for possession. After the plaintiff led his evidence, filed an application for amendment seeking relief of mandatory injunction i. e. for removal of construction over the suit plot. The same is allowed.

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Mr. Mane, the learned counsel submits that the construction is existing since the year 2003. The suit is filed in the year 2007. No prayer is made for removal of construction in the original suit. The Trial has commenced. The plaintiff has

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2 wp 329.14

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examined himself and is cross examined. There is absence of due diligence. The nature of the suit would change, if the said amendment is allowed. According to the learned counsel the Court has failed to consider all these aspects of the matter.

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The arguments of the learned counsel could have been considered, if the suit would have been for simplicitor injunction. However, initially suit filed is for recovery of possession of suit property. The construction is standing over the suit property. Even if the present relief which is sought by amendment would not have been claimed that would not have affected the merits of the claim. The nature of suit certainly would not change, as relief of possession is already claimed in the suit.

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In the light of the above, the discretion exercised by the Trial Court needs no interference. The writ petition is dismissed, however, with no order as to costs.

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[ S. V. GANGAPURWALA, J. ]

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bsb/Jan. 14

Raosaheb Kishanrao Poul v. Santosh Shridharrao Paithankar and Others

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Raosaheb Kishanrao Poul v. Santosh Shridharrao Paithankar and Others

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