- (1.) HEARD Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Shekhar Pd. Sinha, learned counsel for the Respondents.
(2.) CHALLENGE in this writ application is to the order dated 19.04.2008, passed by the Munsif, 1st, Dhanbad in Title Suit No. 44 of 2005, whereby the petitioner's petition dated 21.01.2008 under Order 6 Rule 17 of the Code of Civil Procedure for allowing her to amend the plaint was partly allowed and partly disallowed. Facts of the petitioner's case in brief are as follows: - The petitioner had filed a Title Suit for specific performance of contract against the defendants/Respondents before the court below vide Title Suit No. 44 of 2005. The suit was based upon a contract dated 02.05.1997, under which the defendants had agreed to sell his lands to the petitioner against the stipulated amount of consideration. During the pendency of the suit, one Anil Kumar Singh, who was impleaded as the defendant no. 2 on the prayer of the plaintiff, on the ground that during the pendency of the suit, the defendant No. 1 had illegally transferred the suit land, in favour of the defendant no. 2 by sale deed dated 25.02.2005 and the defendant no. 2 had taken forcible possession of the suit from the plaintiff on 18.02.2006. On the ground that such being the subsequent developments, which had transpired during the pendency of the suit, the petitioner had filed her petition under Order 6 Rule 17 of the Code of Civil Procedure seeking permission to amend the plaint by allowing her to introduce the relevant facts pertaining to the subsequent developments and also the corresponding prayers. The defendants had contested the petitioner's prayer for amendment of the plaint. The learned court below by the impugned order had allowed the petitioner's prayer for introducing only one of the amendments sought for and disallowed the rest.
(3.) FROM the perusal of the impugned order, it appears that the trial court had considered the prayer for the proposed amendments in Para 7 of the plaint as being ancillary to the original relief claimed by the plaintiff and therefore, had allowed the prayer for amendment in Para 7 of the plaint. However, as regards the prayer for amendment in Paras. 1 to 6 of the plaint, the trial court had rejected the same with the observation that the facts claimed to be introduced by way of amendment regarding the execution of the sale deed by the defendant No. 1 in favour of the defendant no. 2 and dispossession of the plaintiff from the suit premises, was well within the knowledge of the plaintiff, some of which, even at the time of drafting of the plaint and yet, the plaintiff did not take any initiative to introduce such facts by way of amendment to the plaint at the initial stage. The further reason assigned by the court is that such amendment cannot be allowed at the stage when the trial has commenced.;