M. R. CALLA, J. ( 1 ) THIS Appeal from Order has been filed against the judgment and decree dated 25-6-1987 passed in ,civil Misc. Appeal No. ,40 of 1983 by the Court of assistant Judge, Surat, whereby the matter was remanded back to the court of 2nd Joint Civil Judge (J. D.), Surat selling aside the judgment and decree passed by the 2nd Joint Civil Judge (J. D.), Sural in regular Civil Suit No. 448 of 1974. ( 2 ) THE petitioner herein is the original defendant and the respondents- are the original plaintiffs. The plaintiffs filed a regular Civil suit claiming tenancy rights in the suit properly and alternatively claiming ownership by adverse possession. On 16-9-1981 the plaintiffs gave up the plea of adverse possession through document Exh. 61. Later on a document dated 8-1-1962 was produced on 10-4-1982 by the defendanls and on the basis of this document, while the Suit had reached the stage of arguments, an amendment was sought by the plaintiffs in September 1982, seeking to again take the plea of adverse possession. This application for amendment moved by the plaintiffs was rejected on 8-9-1982 and, thereafter, the suit was also dismissed on 18-10-1982. Against this judgment and decree dated 18-10-1982 passed by the 2nd Joint Civil Judge (J. D.), Surat, appeal was preferred before the Assistant judge, Surat by the plaintiffs and in this appeal, the learned Assistant Judge, Surat has ordered the remand to the trial Court with a direction that the lower court should frame the issue regarding adverse possession and should allow the parties to lead evidence for the said issue and the suit be tried in accordance with law. Against this order of remand passed in civil Misc. Appeal No. 40 of 1983 by the court of Assistant Judge, Sural the present Appeal has been preferred. ( 3 ) ON behalf of the respondents, a preliminary objection has been raised thai in view of the provisions contained in order XVIII Rule 1 (u) read with Section 20 of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947 this Appeal from Order is not maintainable and the petitioner should have preferred a Revision. This appeal is pending since 1987 and in the impugned judgment, the direction given is to remand the matter. This appeal is pending since 1987 and in the impugned judgment, the direction given is to remand the matter. Before I deal with this objection, in the facts of this case, I consider it appropriate to deal with the order of remand. It is not in dispute that the plea of adverse possession was waived by the plainliffs and after waving the same, the Suit proceeded, the evidence was over and although the document dated 8-1-62 had been produced on 16-4-82 the application seeking amendment to revert back to the plea of adverse possession was moved on 3-9-1982 and against the order dated 8-9-1982. by which the application seeking amendment was rejected, no revision Petition was filed by the plaintiffs, It is also pertinent to mention that the plaintiffs in the Suit have taken alternative but inconsistent plea with regard to the claim as a tenant and the claim by way of adverse possession. There is no doubt that it is open to a party to take inconsistent plea in alternative, provided such inconsistent stand is maintainable in the eye of law. But one thing, which is clear on the face of the matter is that here the inconsistent plea with regard to the claim as a tenant and the claim by way of adverse possession are mutually destructive inasmuch as the possession as a tenant is always permissive whereas adverse possession is never permissive. Therefore, even if it. is held that inconsistent plea can be taken, such plea if mutually destructive, cannot be allowed. Mr. Sajanwala appearing on behalf of the petitioner has cited before me AIR 1968 Supreme Court 1355 (Prem raj v. D. L. F. H. and C. Ltd.) wherein the Supreme Court while dealing with the provisions contained in Section 37 of the specific Relief Act has observed as under:"it is expressly provided by this section that a plaintiff suing for specific performance of the, contract can alternatively sue for the rescission of the contract but the converse is not provided. It is therefore not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section 85 of the specific relief Act, 1877 slates the principles upon which the rescission of a contract may be adjudged. It is therefore not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section 85 of the specific relief Act, 1877 slates the principles upon which the rescission of a contract may be adjudged. But there is no provision in this section or other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance. "according to the Supreme Court, intention of the Act is that no such alternative prayer is open to the plaintiff. In the instant case, when the plea of permissive possession was taken and in juxtaposition to this plea, the plea of adverse possession was also taken, in my opinion it is not simply a case of taking inconsistent plea but the plea is irreconcilable rather it is mutually destructive and, therefore, in my opinion it is not open for the plaintiffs to take such plea on the ground of taking alternative plea. Besides this here is a case in which the plea of adverse possession had been abandoned and waived unilaterally by the plaintiffs. The learned Counsel for the respondent herein has argued that the document dated 8-1- 1962, which was produced on 16-4-1982, uses the words that the plaintiffs father was an eneroacher himself and that this document had been produced by the defendant himself and on that basis the plaintiffs wanted to revert back to the plea of adverse possession, I fail to understand how this document can be a basis so as to amend the plaint and revert back to the plea of adverse possession. The learned Counsel for the respondents herein read over the contents of this document more than once, but failed to satisfy the Court as lo how this document could be made use of so as to revert back lo the plea of adverse possession. The learned Counsel for the respondents has orally submitted that the predecessor in title of the defendant is the author of this document and that in this document it has been mentioned that some construction had been raised by the plaintiffs father without the permission of the municipality. The learned Counsel for the respondents has orally submitted that the predecessor in title of the defendant is the author of this document and that in this document it has been mentioned that some construction had been raised by the plaintiffs father without the permission of the municipality. Such an act of raising construction without the permission of the Municipality can be done by a tenant also and, therefore, this document hardly throws any light on the question of adverse possession so as to entitle the plaintiffs to revert back to the plea of. adverse possession by way of amendment. The plea of adverse possession has been specifically waived by the plaintiffs by moving approrpriate application Exh. 61 and when the application seeking amendment to this effect was rejected; no revision against such order was preferred, to this view of the matter, I am of the considered opinion that the Assistant Judge. Surat has acted with material irregularity in the exercise of its jurisdiction while remanding the matter back to the trial Court so as to frame the issue on the question of adverse possession and on account of this error of jurisdiction, while exercising the same, the order of remand Cannot be sustained in the eye of law and the Appeal, which had been preferred by the plaintiffs, ought to have been decided on merits with reference to the plaintiffs claim as a tenant. ( 4 ) THE learned Counsel for the respondents has argued that even if the plea with regard to adverse possession was waived, it could not defeat the plaintiffs statutory right to amend the plaint, it is settled that the right to seek amendment is always subject to the scope of the amendment and Order VI Rule 17 of the Code of Civil Proedure does not confer an absolute right so as to grant the amendment just for asking the court comes to the conclusion that a plea had been specifically waived earliest and then the same plea is sought to be set up again without any basis and that the same was not necessary for the purpose of determining the real -questions in controversy between the parties, the court can always disallow such amendment, it is also settled that the frivolous applications seeking amendment cannot be allowed and, therefore, in the name of the right to statutory amendment under Order VI rule 17, no party can be allowed either to approbate or reprobate in the same breath. In this view of the matter, the contention raised by the learned Counsel for the respondents herein that despite the waiver, the amendment should have been allowed, is hereby rejected and it may also be relevant to point out that against the order rejecting the application seeking amendment, no Revision was preferred and the same was allowed to become final. ( 5 ) ONCE I find that the impugned order passed by the Assistant Judge, Surat in appeal suffers from an error of jurisdictional nature and it is clear that the learned Judge has acted in exercise of his jurisdiction illegally and with material irregularity, whether this sort of grievance is considered by way of Revision of appeal from order is of no consequence, because either way the order cannot be sustained. In this view of the matter, it is not necessary for me to decide the controversy as to whether in this case the petitioner should have filed Revision instead of appeal. ( 6 ) ACCORDINGLY this Appeal from Order is allowed. The order passed by the assistant Judge, Surat in Civil Appeal no. In this view of the matter, it is not necessary for me to decide the controversy as to whether in this case the petitioner should have filed Revision instead of appeal. ( 6 ) ACCORDINGLY this Appeal from Order is allowed. The order passed by the assistant Judge, Surat in Civil Appeal no. 40 of 1983 on 25-6-1987 remanding the matter back to the trial Court and the order setting aside the judgment and decree of the trial Court are hereby set aside and the Assistant Judge, Surat, i. e. , the Appellate Court is hereby directed to decide the Appeal on the question of plaintiffsclaim as a tenant and to decide the said Appeal on merits against the judgment and decree passed by the trial court. No order as to costs. Appeal allowed. .