Ajay Kumar Mittal, J. - (1.) THE defendant -petitioners are aggrieved by the order dated 26.8.2011 (Annexure P -3) passed by the trial court whereby the application filed by the plaintiff -respondents under Order 6 Rule 17 of the Code of Civil Procedure (In short "the Code") for amendment of the plaint was allowed and the relief of joint possession has been allowed to be claimed by the plaintiff -respondents instead of exclusive possession.
(2.) PUT shortly, the facts necessary for adjudication of the present petition are that Shajwar Singh (since deceased) father of respondents No.1 to 3 filed a suit for specific performance of the agreement to sell dated 20.5.2004 executed by Dana daughter of Shankar Singh in favour of plaintiff -Shajwar Singh regarding the land measuring 13 kanals 10 marlas being 1/2 share of the total land measuring 26 kanals 19 marlas situated at village Megha Rai Uttar, Tehsil Jalalabad or in the alternative the suit for recovery of Rs.2,80,000/ -, i.e. Rs.50,000/ -paid as earnest money and Rs.2,30,000/ -as damages for breach of agreement with interest at the rate of 11/2% per month from the date of advancement till recovery of the same. Along with the suit, an application under Order 39 Rules 1 and 2 of the Code was also filed. Upon notice, the petitioners filed written statement controverting the averments made in the suit. Vide order dated 12.2.2007, the trial court framed issues. Plaintiff -respondents filed an application under Order 6 Rule 17 read with Section 151 of the Code for amendment of the plaint. The said application was replied by the petitioners. The trial court vide order dated 26.8.2011 allowed the application. Hence, the present revision petition. I have heard learned counsel for the petitioners and perused the record.
(3.) LEARNED counsel for the petitioners submitted that the plaintiff -respondents by amending the plaint and changing the nature of possession to be joint instead of exclusive possession claimed earlier, have set up an altogether new case which is time barred. It was also urged that in view of proviso to Order 6 Rule 17 of the Code amendment of the plaint at this stage of proceedings was unwarranted.;