Judgment :

1. Leave granted.

2. This appeal is directed against the judgment and order dated 03rd March 2008 passed by a learned Single Judge of the High Court of Gujarat in Special Civil Application No.451 of 2008 whereby and whereunder the said Application against an order dated 01st December 2007 passed by the learned 3rd Additional Sr. Civil Judge, Surat in Regular Civil Suit No.669 of 1985 dismissing an application of the respondent seeking amendment to the plaint, was allowed.

3. The basic fact of the matter is not in dispute.

4. Plaintiff-appellant filed a suit against Surat Municipal Corporation in its capacity both as a town planner and as Local Authority on or about 08th May 1985 before the learned Civil Judge, Surat which was earmarked as Regular Civil Suit No.617 of 1985. Deceased-respondent herein, claiming to be an allottee in respect of plot no.29-B of the Town Planning Scheme No.3 also filed a suit against the appellant herein praying, inter alia, for the following reliefs :

"Therefore the plaintiff humbly prays that,

(1) be pleased to restrain the defendants from interfering and causing obstruction on the land situated in Surat City, Katargam Town Planning Scheme No.3 having Final Plot No.29-B or cause to interfere, and to restrain from causing any interference or obstruction in their possession and occupation, nor put up any compound wall or fencing, such injunction orders be passed against the defendants.

(2) bepleased to award the entire costs of this suit from the defendants.

(3) bepleased to grant any other and further relief as may deem fit in the facts of this matter."

5. Indisputably, in the said suit, the respondent-plaintiff filed an application for grant of temporary injunction which was rejected by an order dated 18th December 1985. Respondent thereafter filed an application for his impleadment in the suit filed by the appellant herein. We are informed at the Bar that the said matter is pending before the Gujarat High Court.

6. Legal representatives of the deceased respondent on or about 09th April 2003 filed an application for amendment of the plaint in terms whereof they not only sought to implead Town Planner, Surat Municipal Corporation but also Surat Municipal Corporation as such as party defendants. In the said application for amendment, respondents, inter alia, contended that having regard to an order of injunction passed in the suit by the appellant, they did not obtain peaceful possession of the plot in question. On the aforementioned premise, the following paragraphs were sought to be added in the plaint :

"... ...

Alternatively,

Below the Town Planning Scheme the defendant No.1 in this matter has not handed over the peaceful posession of the Final Plot No.29-B, if the Honourable Court should arrive on such decision then in these circumstances the defendants in this matter or the defendant who is held responsible then from the said defendant the peaceful possession of the Final Plot No.29-B be allotted from the defendant Nos.2-3 from other lands admeasuring 3689 sq.mts. land be allotted for obtaining such relief the suit is filed.

Amendment No.3

(1-a) Alternatively if the Honourable Court arrives at the conclusion that in this matter the peaceful possession of the suit Final Plot No.29-B of the defendant No.1 is not handed over to the plaintiff then in these circumstances the final Plot No.29-B 3689 sq.mts. of land peaceful possession be awarded from the defendant or any defendant held responsible, and the decree to this effect be passed in favour of the plaintiff and if the Honourable Court does not find it appropriate to pass such orders then from amongst the defendants paiki any of the defendants that is held responsible then the land equal to the Final Plot No.29-B 3689 sq.mts. of other land be allotted to the plaintiff, and hand over the peaceful possession in favour of the plaintiffs, for this if found necessary then the Commissioner of appropriate authority be appointed and accordin