SANJU PANDA,J. - (1.)The petitioners in this petition have challenged the order dated 10th March, 2014 passed by the learned Civil Judge (Junior Division), Aul in T.S. No. 23 of 2003 rejecting their application under Order 6, Rule 17 of the Code of Civil Procedure to amend the plaint and for insertion of subsequent facts which developed during pendency of the suit.
(2.)The petitioners as the plaintiffs filed the suit for permanent injunction against the defendants from entering into their land and not to cut the chakunda tree which was standing in the eastern part of plot No. 497 belongs to the plaintiffs and the said portion is a Bari. The cause of action arose as defendants tried to cut and remove the Chakunda tree. The defendants appeared and filed their written statement traversing the plaintiffs allegations and claiming that they are the owner of the adjacent plot No. 498 and the said tree attains its full growth and its trunk crossed the middle boundary of both the plots i.e. Plot No. 497 and 498. When the said fact came to the notice of the plaintiffs, they realizing the same filed an application on 29th January, 2014 for amendment in the plaint under Order 6 Rule-7 read with Section 151 of Code of Civil Procedure i.e. 11 years after filing of the suit. The proposed amendment is with regard to valuation of the said tree with a prayer for partition and relief of permanent injunction. In the alternative, in case it was found that any portion of the trunk of Chakunda tree in question situates over the land of the defendants, a Civil Court commissioner be deputed to distribute the logs of Chakunda tree proportionately between the plaintiffs and the defendants as per their entitlements and with a further prayer to delete paragraph 14 of the plaint and in its place the plaintiffs want to insert Court fee as per suit valuation, has been paid.
(3.)The defendants have filed their objections to the said application reiterating their written statement and they have said that the proposed amendment will change the nature and character of the suit.