MAHESH BHAGWATI,J. - (1.) By way of the instant writ petition, the petitioner has beseeched to quash and set-aside the order dated 20th October, 2009, whereby the learned Civil Judge (Sr. Division), Rajgarh allowed the application of the respondents defendant seeking amendment in the written statement of defence.
(2.) Adumbrated in brief the facts of the case are that a civil suit for permanent injunction in mandatory form came to be filed by the petitioner plaintiff against the respondents-defendants. During the pendency of the suit, plaintiff Laxmi Narayan and defendant Kalyan Sahay expired and their legal representatives were taken on record accordingly. After conclusion of trial of the suit the same was decreed and mandatory injunction was issued in favour of the plaintiff-petitioner and against the defendants vide judgment dated 14.2.2002. Aggrieved by the judgment and decree, the respondents-defendants preferred an appeal and the appellate court vide order dated 25.4.2007 set-aside the judgment and decree dated 14.2.2002 and remitted the matter to the learned trial court after framing an additional issue with the following directions: (a) That the learned trial court shall afford an opportunity to the parties to lead the evidence in respect of additional issue (b) After recording the aforesaid evidence, the learned trial court after affording an opportunity of being heard to both the parties and considering each issue, render judgment afresh.
(3.) The respondents-defendants, during the pendency of the said suit, filed an application under Order 6 Rule 17 on 23rd September, 2008 seeking an amendment in the written statement, which was replied by the plaintiff-petitioner. The learned trial court allowed the amendment application with the cost of Rs. 1000/- and permitted the respondents to file the amended written statement of defence. The petitioner plaintiff has challenged this order.;