VINEET KOTHARI, J. - (1.) THIS petition has been filed by the defendants aggrieved by the order dated 25/10/2005 of the learned District Judge, Pratapgarh allowing the application for amendment of the plaintiff respondent in a partition suit filed on 20/7/2005 under Order 6 Rule 17 CPC.
(2.) BY the said application seeking amendments in the plaint, the plaintiff claimed addition of one more relief in the plaint to the effect that in the alternative the agriculture land situated at Pratapgarh-Bagwas Road on the southern side of the house of Bohra Jakiudeen may be handed over to him. Learned counsel Mr. Abhinav Jain appearing for the defendants petitioner vehemently argued that the said addition of relief in the suit is foundation less and it is bound to change the character of the suit for partition filed by the plaintiff in which he claimed partition of only residential house situated at Brij Mohalla outside Dhamotar Gate in Pratapgarh and since no partition of the said agriculture land was claimed in the suit itself, additional relief could not be permitted to be claimed that too by way of amendment under Order 6 Rule 17 CPC. He further submitted that the amendment application was filed much belatedly after two years of commencement of the trial and the same cannot be permitted in view of amendment in Order 6 Rule 17 CPC w.e.f. 1/7/2002, which prohibits any such amendment after commencement of the trial unless there are cogent reasons for the same. He submitted that written statement was filed by the petitioner-defendants in the matter on 31/5/2003 and issues were framed by the learned trial court on 25/2/2004, therefore, at the stage of plaintiff's evidence, such application could not be filed on 20/7/2005 and said application deserved to be rejected. He relied upon the decision of Hon'ble Supreme Court in the case of Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakashdasji N. and Ors., 2007 AIR SCW 513, wherein, in para no. 57 the Court held that the trial is deemed to commence when issues are settled and the case is set down for recording of evidence. He, therefore, prayed for allowing the writ petition and setting aside the order of learned trial court.
(3.) ON the other hand. Mr. Sandeep Shah, learned counsel appearing for the respondent plaintiff submitted that the claim of alternative relief by way of addition of one more prayer in the suit does not prejudice the defendants in any manner and such amendment, in the interest of justice, has rightly been allowed by the learned trial court. He submitted that the issues with regard to said agriculture land have already been framed by the learned trial court as issue nos. 3 and 4 and, therefore, even though the agriculture land was not sought to be partitioned in the main suit itself, on the basis of special plea raised by the defendants in their written statement and rejoinder filed by the plaintiff, the said amendment has been rightly allowed by the learned trial court. He further submitted that there is no delay in filing the application under Order 6 Rule 17 CPC and relying on the judgments in the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2006) 4 SCC 385, G. Nagamma and Anr. v. Siromanamma and Anr., (1996) 2 SCC 25 and Baldev Singh and Ors. v. Manohar Singh and Anr., JT 2006 (7) SC 139, he submitted that at the stage of plaintiff's evidence such amendment could be allowed by the learned trial court.;