D.N. Patel, J. - (1.) THE present petition has been preferred by the Petitioners, who are the original Plaintiffs, against the order dated 29th January 2008 passed by Munsif, Khunti in Title Suit No. 2 of 2007, whereby an application filed by the original Plaintiffs for amendment in the plaint under Order VI Rule 17 Code of Civil Procedure has been rejected.
(2.) HAVING heard learned Counsel for both sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the Munsif, Khunti dated 29th January 2008 in Title Suit No. 2 of 2007, mainly, for the following facts and reasons: (i) The Petitioners are the original Plaintiffs who had instituted Title Suit No. 2 of 2007 and they are relying upon several documents. (ii) It further appears that on 7th January 2008, the original Plaintiffs had given an application for amendment in the plaint under Order VI Rule 17 CPC. The said application dated 7th January 2008 is annexed as Annexure -1 to the present memo of petition. The amendment sought for, reads as under: Details for amendments sought for (i) That at the end of the para 1 the following line be added "it is relevant to mention village Ulilohar, P.S. - Tamar, District Ranchi is Mundari Khuntkati village (ii) That after the para 5 new para 5 (i) be added - 5 (i) That Khuntatidar is not a landlord or tenure holder. The land cannot be surrendered to the Khuntatidar because Under Section 72 of CNT Act Raiyat can surrender the land only to landlord (iii) That after the para 7 new para 7 (i) be added - 7 (i) That the Plaintiff on the wrong advice of a lawyer had filed SAR Case No. 45/87 -88 in the court of Land Reforms Deputy Collector, Khunti but the Land Reform Deputy Collector, Khunti wrongly decided the case under proviso 2 of Section 71 -A of the CNT Act. SAR Officer has no jurisdiction to decide the question of title of the either parties in the summons proceeding. (iii) The aforesaid amendment application was filed when no evidence either side of the suit was examined. This fact has been stated in paragraph -12 of the memo of present petition and it has not been denied by the original Defendants. (iv) Looking to the nature of the amendment, it appears that no prejudice is going to be caused to the original Defendants. Burden of proof in Title Suit No. 2 of 2007 is upon the Plaintiffs. Looking to the nature of amendment sought for, it appears that this amendment will be very much required to be proved by the Plaintiffs. This aspect of the matter has not been properly appreciated by the learned trial court. (v) Counsel for the Respondents (original Defendants) has submitted that they may also be allowed to file additional written statement, which has been fairly accepted by the counsel appearing for the Petitioners. As a cumulative effect of the aforesaid facts, I hereby quash and set aside the order passed by the Munsif, Khunti dated 29th January 2008 in Title Suit No. 2 of 2007. The learned trial court has unnecessarily entered into the merit of the amendment. It ought to have been kept in mind by the trial court that whenever any amendment is preferred under Order VI Rule 17 CPC, merit of the amendment is not required to be checked at all at that stage. Merit of the amendment will depend upon the evidence on record and the correct proposition of law is to be pointed out by the counsel for both sides. This is also an apparent error on the face of the record. Therefore, the impugned order is hereby quashed and set aside. The Petitioners i.e. the original Plaintiffs are permitted to carry out the amendment as per their application filed under Order VI Rule 17 Code of Civil Procedure and the original Defendants are also permitted to file additional written statement or amendment in the written statement.
(3.) IN view of the aforesaid, this writ petition is allowed and disposed of.;