- (1.) THE present petition has been filed by the petitioners-plaintiffs challenging the order dated 5.11.2012 passed by the Civil Judge (Jr. Div.) Tizara District Alwar (hereinafter referred to as "the trial court ") in Suit No. 91/2012, whereby the trial court has rejected the application of the petitioners filed under Order VI Rule 17 of CPC.
(2.) IN the instant case, it appears that the petitioners-plaintiffs have filed the suit for permanent injunction and declaration against the respondents-defendants with regard to protection of their right of way and for permanent injunction for restraining the respondents from creating any hurdle by putting up any construction in the land in question. In the said suit, the respondents-defendants have filed the written statement, and also filed an application under Order 7 Rule 11 of CPC for rejection of the plaint. At that stage, the petitioners-plaintiff filed an application seeking amendment in the plaint under Order VI Rule 17 of CPC, which application has been rejected by the trial court vide the impugned order. It has been sought to be submitted by learned counsel Mr.Shashank Agarwal for the petitioners that the amendment in the plaint is necessary to elucidate the real controversy in the suit and the additional facts sought to be brought on record by way of amendment were required to be incorporated in the plaint itself. He also submitted that since the evidence has yet not begun, no prejudice would be caused to respondents-defendants if the amendment sought is granted. However, the learned counsel for the respondents has submitted that the petitioners-plaintiffs have sought amendment after the application under Order VII Rule 11 of was filed by the respondents. He also submitted that by proposed amendment the very nature of the suit would be changed inasmuch as the petitioners in the plaint had stated that the land in question was agricultural land whereas in the amendment they have stated that no agricultural activities are being carried out in the land in question. According to him, the impugned order being just and proper does not warrant any interference of this court.
(3.) HAVING regard to the submissions made by learned counsel for the parties and to the impugned order passed by the trial court, it appears that the application of the petitioners seeking amendment, filed under Order VI Rule 17 of CPC has been rejected by the trial court mainly on the ground that the proposed amendment would change the nature of the suit. However as rightly submitted by learned counsel for the petitioners, issues are not framed and evidence has yet not begun, the defendants would have opportunity to raise all possible contentions and lead evidence. Merely because the defendants had filed the application under Order VII Rule 11 of CPC seeking rejection of the plaint, that could not debar the plaintiffs from filing the application seeking amendment in the plaint under Order VI Rule 17 of CPC.;