1. This civil revision petition is filed challenging the Order dated 14.06.2010, passed in I.A.No.425 of 2010 in O.S.No.508 of 2008, by the I Additional Senior Civil Judge, Nellore.

2. The respondents herein are the plaintiffs in O.S.No.508 of 2008. The parties will be referred to as they are arrayed in the original suit for the sake of convenience.

3. The plaintiffs filed a suit for permanent injunction basing on easementary rights restraining the defendant/Gram Panchayat from making any constructions. The written statement was filed in the month of December 2008. In Para No.4 of the written statement, it was clearly averred by the defendant that the suit is not maintainable without seeking relief of declaration as alleged by the plaintiffs and then issues have been framed. The 1st plaintiff is examined as PW.1 and he filed chief affidavit. He is a practicing advocate and he was cross-examined on 30.03.2010. During cross-examination, it was suggested to PW.1 that a suit for permanent injunction without seeking relief of declaration is not maintainable, for which, the 1st plaintiff/PW.1 specifically denied the said suggestion. Then the plaintiffs filed I.A.No.425 of 2010 under Order VI Rule 17 read with Section 151 of CPC seeking permission to amend the plaint i.e., seeking relief of declaration that they have easementary rights to pass through the land shown as ABCD in the scheduled mentioned site and have the right of ingress and aggress to the plaint schedule property and consequential amendments in the suit valuation, Court fees and prayer costs.

4. The 1st plaintiff is a practicing advocate who filed an affidavit in support of the petition. He stated in his affidavit that the plaintiffs filed a suit for permanent injunction basing on easementary rights to reach the plaint schedule property through the site marked as ‘ABCD’ in the plaint plan. It is also his case that due to over sight they did not seek the prayer for declaration of right of easement and he came to know the same only during the trial. It is further contended that there are no laches on their part and in spite of due diligence, they could not have raised the matter earlier. It is further contended that an amendment is necessary for adjudication of the case and the said amendment will not change the nature of the suit and the same is necessary to avoid multiplicity of the litigation.

1. The defendant filed a detailed counter contending that the written statement was filed in the year 2008 and that he had already taken a plea that the suit is not maintainable without seeking the relief of declaration of the plaintiffs right and that the trial had already commenced and PW.1 was also cross-examined in part. It is further contended that no amendment petition under Order VI Rule 17 CPC can be entertained except under special circumstances mentioned therein and this case would not come under the special circumstance since the question of maintainability was already raised in Para No.4 of the written statement in the year 2008. The lower Court, by observing that the plaintiffs have mentioned that they and their predecessors have been using the vacant site for taking their men, cattle and tractors from times immemorial and they had been enjoying the said site as easement of right from times immemorial, and referring to the judgment in the case between Muktilal Agarwala Vs. Trustees of the Provident Fund of the Tin Plate Co. of India Limited,( 1956 Andhra Weekly Reporter 183) wherein it is observed that even if declaration is not pleaded the suit is maintainable for the relief of injunction and since the plaintiffs have already pleaded about their right of easement to pass through the subject property and that the said amendment would not change the nature of the suit, allowed the petition. Aggrieved by the same, the defendant filed this revision.

5. Heard.

6. The learned counsel for the petitioner/defendant submits that the trial had already commenced and