Judgment ( 1. ) THIS petition under Article 227 of the Constitution of India has been preferred by defendant, aggrieved by order dated 8-12-2003 by which its application under Order 6 Rule 17 of the CPC has been rejected. ( 2. ) SHORT facts of the case are that:-- the respondent filed a suit for eviction, permanent injunction and for recovery of mesne profit or damages against the petitioner on 31-1-1995. The aforesaid suit is based on pleadings that the suit accommodation belongs to the ownership of the plaintiff, which is a registered society and was registered by Registrar of Joint Staff Companies Center Provinces and Barar Nagar on 15-2-1949. The defendant in the year 1980 without permission of the plaintiff has started school in the name of Arvind Kumar Nitin Kumar Memorial Trust showing himself to be the Managing Trustee. Laxmi Das Shah died on 19-2-1987. After his death, his son Ranchordas Shah became the Managing Trustee. Ranchordas Shah also died and the defendant Atul Kumar has shown himself to be the Managing Trustee of the respondent and in the same capacity, suit for eviction was filed against the defendant, for seeking his eviction on the ground that defendant was occupying the premises unauthorisedly. The plaintiff also claimed damages and mesne profit against the defendant for his unauthorised possession. Defendant filed written statement in the case on 8-3-1997 and claimed his permissive possession as licencee over the suit accommodation. It is also pleaded that the licence is upto 2008 and till 2008, defendant is entitled to remain in occupation of the suit accommodation. ( 3. ) ON 3-12-2003, petitioner moved an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure on the ground that the plaintiff served a notice on 30th June, 1983 in which the plaintiff has not accepted proposal of defendant in respect of rate of rent and accorded its sanction for rent of Rs. 500/- p. m. It was also informed to the petitioner that Rs. 25,000/which are due against the plaintiff, the plaintiff is ready to adjust aforesaid amount towards rent. Thereafter between the parties, rent was settled at Rs. 350/- p. m. which is apparent from the perusal of the case. ( 4. 500/- p. m. It was also informed to the petitioner that Rs. 25,000/which are due against the plaintiff, the plaintiff is ready to adjust aforesaid amount towards rent. Thereafter between the parties, rent was settled at Rs. 350/- p. m. which is apparent from the perusal of the case. ( 4. ) ANOTHER amendment by the application was proposed by the petitioner that on the basis of the notice issued by plaintiff and the resolution passed time to time by the plaintiff, it appears that the plaintiff made proposals for the tenancy and as per averments of the notice, plaintiff is entitled to plead contrary in the plaint and it estopped from it. The pleadings of the plaintiff that the defendant is encraocher is only to pressurise defendant and the suit has been over valued and is liable to be dismissed. ( 5. ) THE Trial Court after hearing arguments of both the parties, vide the impugned order rejected the application, which has been challenged in this petition. ( 6. ) THE learned Counsel appearing for petitioner contended that though there is change of plea in the written statement, but it is in alternative which is permissible under the law to the defendant. In support of this, he has placed his reliance to the Apex Court judgment in Firm Sriniwas Ram Kumar v. Mahabir Prasad and Ors. , AIR (38) 1951 SC 177. The defendant further contended that there is no material inconsistency between the original averments and those proposed by the amendment. The Trial Court committed grave jurisdictional error in rejecting the application. The application was moved within a short time from filing of the written statement which ought to have been allowed by the Trial Court. In this regard, he has placed his reliance to the Apex Court judgment in Jayanti Roy v. Dass Estate P. Limited [ (2002) 5 SCC 175 ]. The third contention of the petitioner is that merely on the ground of delay amendment can not be refused. Such is pre-trial amendment and at this stage merely on the ground of delay, amendment can not be refused. In this regard, reliance is placed to Sampath Kumar v. Ayyakannu and Anr. [ (2002) 7 SCC 559 ]. ( 7. The third contention of the petitioner is that merely on the ground of delay amendment can not be refused. Such is pre-trial amendment and at this stage merely on the ground of delay, amendment can not be refused. In this regard, reliance is placed to Sampath Kumar v. Ayyakannu and Anr. [ (2002) 7 SCC 559 ]. ( 7. ) CONTENDING aforesaid, the learned Counsel for petitioner submits that this petition may be allowed, impugned order may be quashed and the application filed by the petitioner under Order 6 Rule 17 of the Code may be allowed. ( 8. ) THE learned Counsel appearing for respondent supported the order passed by the Trial Court and contended that the said application has been filed by the petitioner after nearabout six and half years from filing of the written statement. By the proposed amendment, the petitioner is raising a different plea which is inconsistent with the earlier plea. The suit of respondent is for possession based on title. The plea of defendant in the original written statement was of licencee and he was claiming his permissive possession in defence of the suit, but now entire inconsistent plea has been raised by the petitioner. A plea of tenancy has been raised which can not be permitted. The plea of defendant will change substantially and will cause serious prejudice to the respondent. After more than six and half years from the date of filing of the written statement, such plea can not be allowed. Though in the initial pleadings, petitioner may take inconsistent plea as held by the Apex Court, in Firm Sriniwas Ram Kumars case (supra), but after more than six years, such plea is not permissible. If there is material inconsistency between original pleadings and proposed amendment, then such amendment can not be allowed. It is not a case when the petitioner after filing the written statement has moved the application immediately, but it was filed after more than 6 years. The alleged facts, which have been pleaded in the plaint were in the knowledge of defendant since 1983 and after long delay, the aforesaid facts have been proposed by the petitioner which is a malafide act on the part of petitioner. The Apex Court in Sampath Kumars case (supra), considering pre-trial amendment of facts for which cause of action arose during the pendency of the suit may be allowed. The Apex Court in Sampath Kumars case (supra), considering pre-trial amendment of facts for which cause of action arose during the pendency of the suit may be allowed. But this is not a case of normal amendment, but by the proposed amendment, petitioner shall displace the respondent from a definite plea which was raised by the petitioner in the reply because the plea of licence is a plea of permissive possession, The position is entirely different to the plea of tenancy, because in the first case, the petitioner has no right to the property and is only entitled to remain in possession of the property till the permission is cancelled or licence is revoked, but in the case of tenancy, the petitioner shall get legal rights under the Transfer of Property Act or under the Accommodation Control Act. The aforesaid plea if allowed at this stage, shall cause serious prejudice to the respondent. Placing reliance on Apex Courts judgment in the case of Arundhati Mishra (Smt.) v. Sriram Charitra Pandey [ (1994) 2 SCC 29 ] the learned Counsel for respondent submitted that this petition may be dismissed that this petition may be dismissed with heavy costs in the interest of justice. ( 9. ) TO appreciate the contention of both the parties, it is necessary to go through the judgments of the Apex Court cited by the petitioner. In Firm Sriniwas Ram Kumars case (supra), the Apex Court considering the right of a party to rely upon different rights in alternatively and there is nothing in the CPC to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court can not grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendants own plea can not possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. ( 10. ) IN Jayanti Roys case (supra) the Apex Court held in Para 8 :- "it is settled that amendments to pleadings which are moved at the proper stage and not unduly delayed should not normally be refused. In the application raising dispute on payment of rent under Sections 17 (2) and (2-A) of the Act the appellant has right from the beginning denied relationship of landlord and tenant between the parties. An amendment was moved stating that on discovery of additional evidence and material, Alamohan Dass was merely a "permissive occupier" in respect of one of the dags. The appellant also sought leave to explain the nature of her possession and occupation. There does not appear any material inconsistency between the original averments in the application and those proposed by amendment. " ( 11. ) IN Sampath Kumar (supra), the Apex Court held in Paras 6, 7, 11 and 12 thus :- "6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself. 7. In our opinion, the basic structure of the suit is not altered by the proposed amendment, what is sought to be changed is the nature of relief sought for by the plaintiff. 7. In our opinion, the basic structure of the suit is not altered by the proposed amendment, what is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit can not be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings. 11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the relief of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. 12. On the averments made in the application, the same ought to have been allowed. If the acts alleged by the plaintiff are not correct, it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual averments and/or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the amendment was sought for before the commencement of the trial. " ( 12. ) THE respondent has relied on Arundhati Mishra case (supra), the Apex Court held :- "3. It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad, that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement can not be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisites are that the delay in making the application, the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties can not be permitted to be defeated. But each case depends upon its own facts. The essential requisites are that the delay in making the application, the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties can not be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it can not be refused. In those circumstances, permission to amend the pleadings could be granted. " ( 13. ) NOW, in the light of the aforesaid law by the Apex Court, the present case may be seen. In the present case, the defendant filed written statement on 8-3-1997 (Annexure P-2) in which the defendant has raised a plea of permissive possession and of licence. This is a definite plea. In reply to the pleadings of the plaintiff that the defendant has encroached over the property, the licencee has a limited right over the property. He is entitled to right of the possession of the property only during the licence period. Once the licence is revoked or permission granted in favour of licencee is cancelled, the licencee retains no right over the property and has to deliver the possession of the property. By raising aforesaid plea of licence or permissive possession, the petitioner may deny the liability of damages or mesne profits, but by raising the plea of tenancy, the petitioner has tried to create his tenancy right in the property. By the aforesaid plea, defendant has tried to establish that there was a proposal of tenancy, which was settled between parties and tenancy rights were created in favour of the defendant. The aforesaid plea is inconsistent with the previous plea. On one hand, the case of the petitioner was of licencee, but by the proposed amendment, he has tried to take an entirely different plea of tenancy. The aforesaid plea can not be permitted to be incorporated by way of amendment at this stage. It is not a case of defendant that the aforesaid inconsistent pleas were raised by the petitioner in the written statement from the very beginning and on the basis of inconsistent pleas in alternative some relief may be granted to the petitioner. The aforesaid plea can not be permitted to be incorporated by way of amendment at this stage. It is not a case of defendant that the aforesaid inconsistent pleas were raised by the petitioner in the written statement from the very beginning and on the basis of inconsistent pleas in alternative some relief may be granted to the petitioner. The notice as alleged in the amendment is dated 30th June, 1983 and was in the knowledge of the petitioner since last 20 years, why this plea was not raised in the original pleadings ? There is no explanation on the part of the petitioner. In these circumstances, the law laid down by the Apex Court in Firm Sriniwas Ram Kumar (supra) is not applicable and on that basis the petitioners application for raising inconsistent plea at this stage can not be allowed. ( 14. ) SO far as the convention of the petitioner that the application ought to have been allowed by the Court below on the basis of law laid down by the Apex Court in Jayanti Roy is concerned, in the present case, there is material inconsistency between original pleadings and those proposed by the application. Though law of amendment is liberal, but it can not be used to defeat right of other party. If the application is moved at proper stage without any (undue) delay, normally amendment application is not rejected, but after more than 6 years, if such amendment is allowed, it will cause serious prejudice to the plaintiff. In these circumstances, the petitioner can not get any benefit of the case of Jayanti Roy (supra ). In Sampath Kumars case (supra), the Apex Court considered pre-trial amendment based on cause of action arising during the pendency of the suit. In that case, the nature of relief sought to be changed, while basic structure of the suit remained unchanged. In those circumstances, the Apex Court found that merely on the ground of delay of 11 years in filing, an application for amendment can not be rejected. But facts of this case are entirely different and petitioner can not take any benefit of Sampath Kumar. ( 15. In those circumstances, the Apex Court found that merely on the ground of delay of 11 years in filing, an application for amendment can not be rejected. But facts of this case are entirely different and petitioner can not take any benefit of Sampath Kumar. ( 15. ) IN the light of the law laid down by the Apex Court in Arundhati Mishra s case, it is not in dispute that it was open to the petitioner to raise even inconsistent pleas in the written statement if he was claiming relief on the basis of alternative pleas but it is not case herein. In this case, there is no indication in plaint or in the written statement in respect of the relief which the petitioner is claiming at present. Though in the written statement, pleas may be alternatively or on additional ground to contest the suit, but at this stage, when the suit was filed in the year 1995, and the written statement on 8-3-1997 and after more than 6 and half years, if such inconsistent pleas are permitted in the written statement, the petitioner will be permitted to change his stand in the original pleas. His status as pleaded is of a licencee and except this nothing was pleaded in the written statement. The plea of licence and of tenancy are not consistent to each. In one, the party gets no right except to continue his possession during the licence period, but in other case, the party gets statutory rights in the property and his rights are to be decided in accordance with provision of Transfer of Property Act or relevant Accommodation Control Act. In one case, the possession is permissive while in other case, the possession is based on contractual obligations. In these circumstances, it will not be proper to permit such amendment which will cause serious prejudice to the other side. The Court below considering aforesaid has rightly rejected the application filed by the petitioner, in which I do not find any jurisdictional error warranting interference. This petition is dismissed with no order as to costs.