SUJIT NARAYAN PRASAD,J. - (1.) This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 16.05.2016 passed in Title Suit No.13 of 2013, is under challenge by which the petition filed under Order VI Rule 17 of the C.P.C. has been allowed wherein the plaintiffs have been allowed to incorporate in the plaint by making addition at paragraph-5 to the effect that "as the said properties was purchased from joint family fund of a Hindu undivided family"? and in relief No.1, in place of word "these"?, the same may be deleted and "Deeds"? may be substituted and thereafter this line may be added "and the entire property was not Partitioned properly and acquired from joint family fund"?. The trial Court has allowed the same, holding therein that the trial has not commenced, therefore, no prejudice would be caused which has been assailed by way of instant writ petition.
(2.) Mr. J.P. Jha, learned senior counsel appearing for the petitioners has raised issue that the partition suit has been filed earlier to this suit which was decreed on compromise, thereafter one of the co-sharers has disposed of the property in favour of the defendants and hence, the decree which has been passed by way of compromise in the said partition suit, cannot be made subject matter of the instant suit but the trial Court having not appreciated the aforesaid aspect of the matter while allowing the petition filed under Order VI Rule 17 of C.P.C., as such is not sustainable in the eye of law.
(3.) Mr. Arvind Kumar Choudhary, learned counsel appearing for the respondents has submitted by referring to the object and scope of Order VI Rule 17 that the provision is very explicit and express that if the trial has not commenced, amendment needs to be allowed in order to avoid multiplicity of proceeding. Further refuting the arguments of learned senior counsel for the petitioners, has submitted that so far as the question of decree, passed in the partition suit on compromise, the said issue since pertains to the merit which can well be agitated in course of trial for getting it answered on adjudication of the issues and hence, the amendment as has been sought for, needs to be allowed. ;