A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative.

O. K. SETH, J.

( 1 ) THE plaintiff-petitioner in this petition had filed a suit being Original suit No. 297 of 1996 for injunction restraining the respondent No. 3 from raising any construction over the abchak land in the south of the petitioners house and from encroaching thereupon, in any manner. The said suit was filed in the Court of Civil Judge, junior Division, Moradabad. In para 2 of the plaint, it was alleged that on the southern side of the house of the petitioner there is Abchak which is about one meter wide and twenty three meters long and upon which the petitioner is discharging water through his drainage from long before. In para 11 of the plaint, he has claimed that he has easementary right to discharge water on the said abchak. The suit was simple suit for injunction against the private defendant. This amendment was disallowed by the learned trial Court by an order dated 18. 9. 1996. Against the said order dated 18. 9. 1996 a revision was moved being Civil revision No. 126 of 1996. By an order dated 28th May. 1997 the said revision was dismissed and the amendment was disallowed. It is against these orders the present writ petition has been moved.

( 2 ) SRI Ved Byas Mishra, learned counsel for the respondents, took a preliminary objection that the original suit being suit for injunction, the writ petition is not maintainable. Inasmuch as in view of the ratio decided in the case of Ganga Saran v. Civil Judge, Hapur, wherein it has been held that the suit for injunction is in effect a relief against the private person and, therefore, no writ can be maintained in respect of such suit. In order to obviate the difficulty, the learned counsel for the petitioner Sri Dhruva Narayana, sought for leave to amend the writ petition into one under Article 227 of the Constitution. In the facts and circumstances of the case, leave is granted.

( 3 ) SRI Dhruva Narayana, learned counsel for the petitioner contends that the order refusing amendment is wholly illegal and irregular. In fact both the learned courts below have failed to exercise their jurisdiction vested in them. Therefore, the said orders are to be set aside. Inasmuch as by reason of amendment neither nature nor character of the suit is changed. May be an alternative case has been made out. The suit remains suit for injunction. The only alternative ground or pleading, as sought to be made out in respect of relief for injunction. Even then according to him no relief in the form of declaration of right has been asked for. The simple prayer made in the plaint is that of injunction and nothing else. Therefore, reliance having placed on the decision in the case of Shri Niwas Ram kumar v. Mahavir Prasad and Ors, he contends that even alternative pleadings are permissible.

( 4 ) SRI Mishra, learned counsel for the respondents, on the other hand contends that in para 11 of the plaint the petitioner having admitted to have easementary right he cannot withdraw such an admission and plead ownership and thereby introduced either inconsistent case or withdraw the admission. He relied upon, in support of his contention, in the decisions, namely : Munnilal Sahu v. District Judge, Jhansi; Shri Kishan Lal v. Shri Rajan and Rampal Singh v. Zafar ahmad. A perusal of the plaint and comparison thereof with the amendment sought for reveals that in para 2 where the petitioner had contended that there is a abchak in the south of the petitioners residence where the petitioner is discharging water through drainage, he seeks amendment by incorporating the statement to the extent that the said abchak belongs to the petitioner and that thereon no drain of Sri Manmohan krishna Khanna, the predecessor-in-interest of respondent No. 3 had any drain at any point of time. It appears that having regard to the statement made in para 11 of the plaint, the petitioner has sought to make out an alternative case of ownership in respect of the relief for injunction. While in para 11 of the plaint, he has plead