JUDGMENT : 1) The present writ petition has been filed challenging the order dated 09.02.2024 passed by the learned Additional District Judge No.3, Jodhpur Metropolitan in Civil Original Suit No.14/2009 (NCV No.10844/2014), whereby the application filed by the defendants seeking amendment of pleadings and relief in the counter-claim, has been allowed. 2) The present petition has been filed at the instance of the plaintiff in the suit. 3) The background of the facts reveled that the plaintiff filed a suit to declare that the sale agreement dated 20.03.2006 and Power of Attorney dated 30.03.2006 were not executed by him and consequently, sought to declare the sale-deed dated 11.07.2006 as null and void. Additionally, he also sought relief for cancellation of mutation made in pursuance of the sale-deed. 4) It appears that the plaintiff filed an application seeking interim injunction. The same was dismissed by the trial court as well as the appellate court and revisional court. The defendants also filed written statement and counter-claim seeking perpetual injunction restraining the plaintiff from interfering their possession on the basis of agreement for sale and sale-deed. 5) During the pendency of the suit proceedings, the first defendant died on 26.04.2017. The trial was also commenced and the plaintiff’s evidence was concluded. At that stage, the defendants had filed the present application seeking amendment of pleadings in the written statement and counter-claim. The said application was allowed by the trial court vide order dated 09.02.2024. Therefore, the plaintiff filed the present writ petition challenging the said order. 6) Heard the learned counsel for both the parties. 7) The main contention of learned counsel appearing for the petitioner/plaintiff is that the criminal proceedings, which were initiated at the instance of the defendants, culminated into filing of the Final Report whereby the Investigating Officer clearly held that the defendants have never been in possession as on the date of filing of the suit and it was the plaintiff, who was in possession. Therefore, allowing the amendment of the declaration and recovery of possession amount to changing the nature of the dispute. It is also his contention that the amendment application was belated and the same was filed after the evidence was commenced. Therefore, the application ought not to have been allowed by the trial court unless the defendants establish that in spite of due diligence could not bring the additional facts and relief on record. It is also his contention that the amendment application was belated and the same was filed after the evidence was commenced. Therefore, the application ought not to have been allowed by the trial court unless the defendants establish that in spite of due diligence could not bring the additional facts and relief on record. 8) Per contra, the learned counsel appearing for the respondents/defendants has submitted that the plaintiff taking advantage of death of the first defendant and also pandemic situation has illegally occupied the disputed suit land and such a fact came to be known only when the legal heirs of the defendants visited the disputed land on 30.01.2023. They came to know that the plaintiff occupied the suit property in the year 2020-2021 taking advantage of lock down. Having known such fact, the present application has been filed for amendment. According to him, in spite of due diligence, the defendants could not know the fact of illegal encroachment in the circumstances of death of the first defendant. Therefore, the learned trial Judge has rightly exercised his discretion to allow the application and such order requires no interference. 9) The learned counsel for the respondents also submitted that the plaintiff accepted the cost, as such, he has no right to assail the order impugned. It is also his contention that the relief sought by the plaintiff was for declaration and cancellation of the documents and the amended relief sought is only declaration and recovery of possession. Both the claims required to be adjudicated in the same proceedings instead of relegating the party to file a separate suit. Therefore, he prays for dismissal of the writ petition. 10) I have considered the arguments of both the parties and perused the impugned order as well as material available on record. 11) In the light of the submissions made by both the parties, the only point for consideration is whether the order impugned requires any interference. It is undisputed fact that the plaintiff filed the suit for declaration that the agreement of sale and General Power of Attorney (GPA) were not executed by him and consequently sought the sale-deed as null and void on the basis of such document, and also sought cancellation of consequential mutation basing on the above invalid documents. It is undisputed fact that the plaintiff filed the suit for declaration that the agreement of sale and General Power of Attorney (GPA) were not executed by him and consequently sought the sale-deed as null and void on the basis of such document, and also sought cancellation of consequential mutation basing on the above invalid documents. The defendants’ claim is that they were delivered possession in the agreement for sale and subsequently, a sale-deed was executed on the basis of General Power of Attorney given by the plaintiff. Further, their claim is that they are in possession under the valid sale-deed and their possession cannot be interfered. As such, initially, he filed a suit for perpetual injunction against the plaintiff. In this regard, it is appropriate to refer to Order VI Rule17 of CPC, which reads as follows:- “ 17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 12) The amendment of pleadings are ordinarily allowed if such amendment is necessary for the purpose of determining the real question in controversy between the parties. However, such an amendment shall not be allowed after the trial has been commended unless it is shown that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 13) In the impugned proceeding in the present case, there is nothing on record to show as to when the trial has been commenced. However, it is shown that the present application was filed after the evidence of the plaintiff has been closed and when the matter is coming for the defendants’ evidence. The stand taken in the application is that on account of death of first defendant and taking advantage of pandemic situation, the plaintiff has encroached upon the subject land in the year 2020- 2021. The stand taken in the application is that on account of death of first defendant and taking advantage of pandemic situation, the plaintiff has encroached upon the subject land in the year 2020- 2021. This fact came to the legal heirs of the first defendant’s knowledge only when they visited the disputed land on 31.01.2023. However, the plaintiff’s reply to such application revealed that he had been in possession of the property and he never executed any agreement for sale or GPA and no possession was delivered under the agreement for sale as claimed by the defendant. He asserts that his claim has further been substantiated by the Final Report filed in a First Information Report lodged by the first defendant. According to him, allowing the application would alter the nature of suit and that too when the evidence has been commenced, it is improper to allow such application. According to him, the learned trial Judge exercised discretion, which is not proper in the facts and circumstances of the case. 14) The trial Judge after satisfying with the explanation and considering the reply has exercised its discretion in favour of the defendants by allowing their application. The plaintiff’s suit is not a simplicitor suit for perpetual injunction. It also sought a relief of declaration that agreement for sale and GPA, have not been executed by the plaintiff and also sought a declaration that the sale-deed executed on the basis of such documents is null and void, and also sought cancellation of mutations, which were done on the basis of such evidence. The defendants’ amended relief only sought recovery of possession and also sought declaration that his illegal dispossession is invalid. The defendants would succeed only if the validity of the document, which challenged by the plaintiff, was found to be correct otherwise the suit has to be dismissed. This means the issues in the amended relief and the plaintiff’s relief requires adjudication in a common suit. The relief sought in the present case is recovery of possession, which is on account of alleged claim of dispossession during the suit proceedings. There is no doubt that the defendants can institute independent suit for such relief. This means the issues in the amended relief and the plaintiff’s relief requires adjudication in a common suit. The relief sought in the present case is recovery of possession, which is on account of alleged claim of dispossession during the suit proceedings. There is no doubt that the defendants can institute independent suit for such relief. However, in order to avoid multiplicity suit proceedings, the adjudication of the relief which is amended, requires to be done in a pending suit and counter- claim, which would be convenient for the party and save the time of court and prevent the multiplicity of the litigation. Further, the suit is of the year 2009 and relegating the defendant to file an independent suit would delay the present suit as well, since the adjudication in one suit have an effect on the other suit. 15) Dealing with the contention of the learned counsel for the defendants that the present writ petition is not maintainable for the reason that the plaintiff has received the cost imposed in allowing the application, this contention is unsustainable because statutory or constitutional remedies cannot be defeated merely because a cost has been awarded and received in allowing the application. Therefore, though the application is filed after the commencement of trial, for the reasons explained by the first respondent, the trial court has rightly allowed the application, which does not require any interference by this Court. 16) In the result, the present writ petition is disposed of as follows:- (i) The challenge made to the order dated09.02.2024 passed by the learned Additional District Judge No.3, Jodhpur Metropolitan is rejected; (ii) The trial court shall dispose of the civil suit as early as possible; and (iii) The trial court is also directed to allow the plaintiff to lead further evidence in the light of the amendment and reserves his right to lead rebuttal evidence for the defendants’ counter claim. 17) In the circumstances, no order as to costs. 18) Pending interlocutory applications, if any, shall stand disposed of.