D.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 petitioner's 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 metre wide and twenty three metres 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. Tins 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 this amendment was disallowed. It is against these orders the present writ petition has been moved.
(2.) SRI Ved Vyas 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 is in view of the ratio decided in the case of Ganga Saran v. Civil Judge, Hapur, AIR 1991 Alld. 114,whereinit 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 Narain, 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. Sri Dhruva Narain, 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 others, AIR 1981 SC 177, he contends that even alternative pleadings are permissible.
(3.) 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 can not 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, the decisions namely; Munnilal Sahu v. District Judge, Jhansi, 1992 (1) AWC 33; Shri Kishan Lal v. Shri Raj an, AIR 1993 (Delhi) 1 and Rampal Singh v. ZafarAhmad, 1991 (1) A. W.C. 680. 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 petitioner's 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 a alternative case of ownership in respect of the relief for injunc­tion. While in para 11 of the plaint he has pleaded easement, ary right to discharge water. In fact, the inconsistency pleaded in the plaint but that too in respect of relief of injunction only without seeking any relief in the form of declaration. It would be open to the defendant to contest the case and to prove that the petitioner is not owner. By reason thereof no prejudice is being caused on the defendant. At the same time by reason of such amendment neither nature nor character of the suit is being changed in as much as the suit remains suit for injunc­tion and no additional relief is also being claimed in the form of declaration or other­wise. In a suit for injunction, that may also not be necessary, whether it is necessary or not that can be decided at the time of hear­ing of the suit which can very well be agitated by either of the parties. It appears from the decision in the case of Sri Niwas Ram Kumar (supra) as has been held by the Apex Court as under: "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." Therefore, it can not be said that in­consistency pleading can not be made. On the other hand the said judgment also per­mits inconsistent prayer. But in the present case there is no inconsistency in the prayer. On the other hand it has been sought to be founded on two alternative grounds.;