D.N. Patel, J. - (1.) THE present writ petition has been preferred by the original Plaintiff of Title Suit No. 65 of 2005 against the order passed by learned Sub Judge I, Dumka dated 10th October, 2007, whereby, amendment application in the plaint, preferred by the original Plaintiff has been dismissed.
(2.) HAVING heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the trial court mainly for the following facts and reasons: (i) The present Petitioner is the original Plaintiff, who has instituted Title Suit No. 65 of 2005 before the court of learned Sub Judge I, Dumka. (ii) It appears that on 7th February, 2006, an application was preferred by the original Plaintiff for amendment in the plaint and the following amendments were proposed to be carried out in the plaint: The proposed amendments as mentioned in the amendment petition are reproduced as follows: paras i, ii, iii, iv, vi, vii, viii and ix of the amendment petition as annexed herewith. i. "That the caption portion of the plaint after the description of the Defendant after the words "Ad volerum Court fee stamps worth Rupees" and before the work "Payable" the blank portion be filled up by "Rs.6,200/". ii. That in paragraph No. 3 of the plaint some mistake has taken place about the area given in the 3rd line after the work "Thereon measuring" and before the words "at mouza Khijuria" the area "3 Bigha 19 Kathas 17 Dhure" is required to be deleted and in it's place "1 Bigha 15 Katha 1 Dhur" be substituted. iii. That in the same paragraph in the 6th line after the words "Plot No. 221 area" on before the work "Plot" the area "1 Bigha 15 Katha 1 Dhur" be deleted in it's place "1 Bigha 00 Katha 11 Dhur" be substituted. iv. In the same paragraph in the 7th line after the work "area" and before the work "total" the area written as "2 Bigha 4 Katha 16 Dhurs" be deleted and it's place "00 Bigha 14 Katha 10 Dhurs" be substituted. v. In the 8th paragraph of the plain in the 3rd line after the words "(Rupees 23 lakhs)" the following sentences be added, "which included some Jamabandi lands also but the same is not the subject matter of this case". vi. In the 23rd paragraph of the plaint in the 7th line after the words "stamps worth" and before the words "shall be" the blank portion be filled up with "Rs.6,200/ -". vii. In paragraph 24(1) in the 6th line after the words "on receiving the" and before words "balance consideration" the word "proportionate" be added. viii. That in the same paragraph in the 7th line after the work "money" and before the work "from" on the 8th line the amount "of Rs. 21,00,000/ -" be deleted. (iii) Thus, looking to the nature of amendment, it appears that there are some typographical errors and that is to be corrected. The area of the property has been corrected in several paragraphs of the plaint. Thus, looking to the over all amendment in the plaint, it cannot be said that the nature of the suit will be changed. The nature of the suit remains as it is. The suit was filed for specific performance of agreement to sale dated 7th August, 2003. Thus, even after the amendment is allowed, there will not be any change in the nature of the suit. (iv) Looking to the stage of the trial, it appears that issues were framed in the year 2009 and the amendment application is preferred in the year 2006. Thus, much prior to framing of the issues, amendment application has been preferred and the evidence was not started, at all, at the time of filing of the application. No prejudice is going to cause to the original Defendant, if this amendment application is allowed. The basic burden of proof remains upon the original Plaintiff, even after the amendment is carried out. The whole case is based upon the agreement to sale dated 7th August, 2003, which is in writing. The aforesaid aspect of the matter has not been properly appreciated by the trial court. The conclusion arrived at by the trial court that by allowing the amendment, it will change the nature of the suit, is not correct. Moreover, as stated here -in -above, even the amendment application is much prior to framing of the issues. No evidence was started as on that date. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside the order passed by learned Sub Judge I, Dumka dated 10th October, 2007 in Title Suit No. 65 of 2005 and I also hereby allow the amendment application preferred by the original Plaintiff.
(3.) THE writ petition is allowed and disposed of.;