- (1.) Despite service of notice, none appears on behalf of the opposite party. Affidavit-of-service filed today in court be kept on record.
(2.) In the instant revisional application, the former part of the Order No. 27 dated 7th March, 2013 has been called in question wherein the learned trial court while disposing of an application for amendment of the plaint dated 17th November, 2012 rejected the same on the ground that the proposed amendment would change the nature and character of the suit as the original suit was declaratory in nature in respect of the plot in question but the proposed amendment was for partition of the same. Order VI Rule 17 of the Code of Civil Procedure prescribes the amendment of the plaint at any stage of the proceeding 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 of controversy between the parties.
(3.) Learned Advocate for the petitioners in course of hearing submitted that the opposite party herein raised objection against the application under Order XXXIX Rules 1 & 2 of the Code and contended that the suit plot, since not being partitioned by metes and bounds, no effective order of injunction can be passed. He also submitted that taking into consideration this aspect, his client filed the application under Order VI Rule 17 of the Code for amendment of the plaint by way of insertion of the prayer for partition of the disputed plot by metes and bounds. Such a prayer at best can be treated as a mistake on the part of the plaintiff or his advocate but that cannot debar him to amend his prayer in the plaint and in my considered opinion, this cannot be treated as a change in nature and character of the suit.;