- (1.) THE present petitioner by way of filing this writ petition under Article 227 of the Constitution of India has prayed for quashing the order dated 19.4.2007 passed by the court of Sub-ordinate Judge No. II at Koderma in Eviction suit no. 7 of 2004 whereby the prayer of the petitioner made in the application filed under Order VI Rule 17 read with Section 151 of the Civil Procedure Code for amendment in the plaint has been rejected. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent. Perused the impugned order as well as other materials placed on record
(2.) IT appears that application under order-6 rule 17 of CPC has been filed before the learned court below seeking amendment in respect of schedule where description of the property has been given by the plaintiff. It appears that this application has been filed at a belated stage when the plaintiff's evidence is over and recording of the defendant's evidence was under progress. The view taken by the learned court below while rejecting the application cannot be accepted in view of the fact that the suit for eviction has been filed before the court below and therefore, in substance the nature of the suit is not going to be changed if the amendment in question is ordered to be allowed. The decision cited by the learned Sr. counsel for the petitioner in the case of Sajjan Kumar Vs. Ram Kishan reported in (2005) 13 SCC 89 is relevant for the purpose of deciding of the present case. The relevant paragraph are as under : "3.The prayer for amendment was opposed on behalf of the defendant-respondent. The principal ground for opposition was that although the defendant-respondent had taken the plea in the written statement itself that the suit premises were not correctly described, yet the plaintiff-appellant proceeded with the trial of the suit and did not take care to seek the amendment at an early stage. 4. The trial court rejected the prayer for amendment. The Civil Revision filed under section 115 of the the Code of Civil Procedure has been rejected by the High Court. Feeling aggrieved, the plaintiff- appellant has filed the present appeal by special leave. 5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to show exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction,even if section 115 C.P.C would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit,more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of plaintiff appellant succeeding in the suit" In view of the aforesaid decision and looking to the facts of the present case the present petition deserves to be allowed as this court is of the view that the defendant shall get an opportunity to file additional written statement if needed and to examine the witness in respect of the proposed amendment. Accordingly, this petition is allowed and the impugned order dated 19.4.2007 is quashed/ set aside. Let this order be communicated to the court concerned through fax at the cost of the petitioner.;