- (1.) THE present writ petition has been preferred under Article 227 of the Constitution of India against an order passed by the Sub Judge -I, Chatra in an application preferred by the present petitioner (original plaintiff) under Order VI Rule 17 of the Code of Civil Procedure in Title Suit No. 1 of 2004 whereby an amendment application, preferred by the present petitioner, was dismissed and therefore, the present petition has been preferred.
(2.) I have heard counsel for the petitioner as well as counsel for the respondent no. 3. Though other respondents are served, nobody appeared on their behalf. Counsel for the petitioner submitted that vide amendment application which is at Annexure -6 to the memo of the present petition, there was some typographical errors in the plaint and therefore, an application was filed under order VI Rule 17 of the Code of Civil Procedure to be read with Section 151 of the Code of Civil Procedure so that when the decree is passed in favour of the original plaintiff there may not be any difficulty in the execution of the decree. It is also submitted by the counsel for the original plaintiff that by the amendment application preferred by the original plaintiff, there will not be any change in the nature of the suit. It is also submitted by the counsel for the petitioner that prior to the stage of taking an evidence, the application was preferred for amendment and even on today, no evidence has been started in the aforesaid Title Suit. The trial court has not properly appreciated this fact of the matter and hence, the impugned order deserves to be quashed and set aside. It is also submitted by the counsel for the petitioner that earlier application preferred under Order VI Rule 17 of the Code of Civil Procedure was for absolutely another purpose. Internally some of the defendants have sold the suit property to other defendants and therefore, earlier application was preferred, but, the present amendment application which is at Annexure -6 to the memo of the present petition is for correction of some typographical errors as stated in Schedule -I in the said application. Thus, previously the application has nothing to do with the present amendment application which is at Annexure -6 to the memo of the writ petition. This aspect has also not been properly appreciated by the trial court and hence, also the order passed by the trial court deserves to be quashed and set aside. I have heard counsel for the respondent no. 3, who has submitted that previously an amendment application under Order VI Rule 17 of the Code of Civil Procedure was also dismissed and therefore, trial court has correctly dismissed the second amendment application also. It is also submitted by counsel for the respondent no. 3 that if the amendment is allowed the whole matter of the suit will be changed. This aspect of the matter has been correctly appreciated by the trial court and therefore, the petition deserves to be dismissed.
(3.) HAVING heard 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 Sub Judge -I, Chatra in Title Suit No. 1 of 2004 below an application preferred by the petitioner under Order VI Rule 17 of the Code of Civil Procedure to be read with Section 151 thereof, mainly for the following facts and reasons: - (i) The present petitioner is an original plaintiff, who has instituted a Title Suit No. 1 of 2004 before the trial court. Plaintiff as well as original defendants are claiming right, title and interest upon the suit properties. (ii) It appears from the facts of the case that during pendency of the suit before the trial court, some of the defendants have sold the property to other defendants and therefore, previously an amendment application was preferred, but, for the reason recorded the same was dismissed by the trial court. Thereafter, second time, amendment application is preferred. The said application is at Annexure -6 to the memo of the present petition. This application is preferred by the original plaintiff on 2nd May, 2006 for correction of some typographical errors in the plaint in paragraph 5 of the amendment application. The amendment sought for reads as under: - " The Defendants will not prejudice if the proposed amendment is allowed. It is, therefore, prayed that your honour be pleased to allow the proposed amendment as given in Schedule -I, of this petition in the light of submission made above. Schedule -I (a) in paragraph 6 of the original plaint in fourth line the figure 8 be deleted and in its place the figure 6 be substituted. (b) In paragraph 6 of the original plaint, in the fifth line the figure 10 to be deleted and in its place the figure 12 be substituted. (c) In paragraph 18 of the original plaint, in the last line after the word Dwarika Sao, the following sentence be added - "It is further submitted that defendants nos. 2, 4, 5 and 6 had admitted the title and possession of the plaintiff over the land in suit under the various registered instruments" (d) In Schedule ˜A' of the original plaint, in the fourth line, the figure 10 be deleted and in its place figure 12 be substituted." In view of the aforesaid amendment application, it appears that the original plaintiff wants to amend some typographical errors in the plaint and therefore, this amendment will never change the nature of the suit at all. This aspect of the matter has not been properly appreciated by the trial court. Instead of figure 8, figure 6 is substituted as per the amendment. Likewise, there are some other typographical errors as stated in further paragraph 5(a), 5(b), 5(c) and 5(d) in the amendment application. By change of some figures, it can never been said that the whole nature of the suit is changed. Pleadings remain as it is. Suit property is also same, but, there is same change in the narration of the suit property. This aspect of the matter has not been properly appreciated by the trial court, which is an error apparent on the face of the record. (iii) It also appears that previously amendment application was not for the same purpose, but, it was preferred because of some internal sell before the co -defendants and therefore, previously amendment application has nothing to do with the present amendment application and looking to the Annexure -6 which is an application preferred by the present petitioner under Order VI of the Rule 17 of Code of Civil Procedure, it is mere correction of typographical errors in the plaint. In view of these facts, the amendment application ought to have been allowed by the trial court. (iv) It also appears from the facts of the case that even evidences have not been started in the aforesaid Title Suit no. 1 of 2004. Thus, no prejudice will be going to cause to the original defendants. ;