The amendment under Order 6, Rule 17 of the Code of Civil Procedure, 1908, to seek relief of possession was permissible under the law.

Vivek Rusia, J.

1. Counsel for the petitioners heard on the question of admission and on interim relief.

2. The petitioners being the defendants has filed the present petition under Article 227 of the Constitution of India, being aggrieved by order dated 12.02.2016 passed in Civil Suit No.30-A/2012 by which the application under Order 6, Rule 17 of Code of Civil Procedure, 1908 filed by the plaintiffs have been allowed.

Facts of the case are as under:

3. That the respondents/plaintiffs had initially filed the suit for grant of injunction on the ground that they are the owners and are in possession of the disputed property.

4. After notice, written statement was filed by the present petitioners/defendants along with counter claim with a pleadings that they are the owners and are in possession of the disputed property. It is contended by the learned counsel for the petitioners that temporary injunction was sought by the plaintiffs/respondents restraining the defendants not to interfere with their peaceful possession. The said temporary injunction was rejected. Thereafter, miscellaneous appeal was filed which was also dismissed. When the case was fixed for evidence, the plaintiffs/respondents have filed an application under Order 6, Rule 17 of Code of Civil Procedure, 1908 and vide order dated 05.05.2015, the said application was rejected. Thereafter, the case was adjourned from time to time for plaintiffs/respondents evidence. Thereafter, the plaintiffs/respondents had filed another application under Order 23, Rule 17 of Code of Civil Procedure, 1908, for withdrawal of the plaint with a liberty to file the fresh plaint on the ground that during pendency of the plaint, the defendant/petitioner has dispossessed the plaintiffs and taken possession over some parts of the suit property. Vide order dated 02.11.2015, the said application was dismissed. Thereafter, the plaintiffs had filed an application under Order 6, Rule 17 of Code of Civil Procedure, 1908, seeking amendment to the effect that they have been dispossessed and relief of possession has also been sought. Vide impugned order, the application under Order 6, Rule 17 has been allowed.

5. Shri Satish Jain , learned counsel for the petitioners/defendants further submits that the application was filed by the plaintiffs/respondents with an intention to convert their suit into declaration suit, as on earlier occasion also the application for amendment was rejected. The plaintiffs/respondents were never into the possession of the suit property from the beginning and the defendants/petitioners are in peaceful possession over the suit property from the very beginning hence there is no subsequent development in the plaint, therefore, the application has wrongly been allowed.

6. In support of his contention, the plaintiffs/respondents has relied upon a judgment delivered by Hon’ble Supreme Court in the case of Mashyak Grihnirman Sahakari Sansthan Maryadit v. Usman Habib Dhuka reported in (2013) 9 SCC 485 where the Supreme Court has held that the amendment sought in the plaint is at belated stage and is not liable to be allowed.

7. I have heard learned counsel for the petitioners/defendants.

8. That, the plaintiffs/respondents initially sought withdrawal of the suit on the ground that during pendency of the plaint they have been dispossessed and now they want to file a suit for the relief of possession. Vide order dated 02.11.2015, the said relief was rejected by the trial Court. Now the plaintiffs/respondents had remedy either to file a fresh suit for seeking relief of possession or by way of amendment in the present suit. The plaintiffs chooses to amend the suit to seek relief of possession which is permissible under the law and to avoid any multiplicity of proceedings. Therefore, in my considered opinion, the trial Court has rightly allowed the application for amendment.

9. This is a disputed question of fact that whether the plaintiffs/respondents were initially in possession of the d