IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9074 of 2011 Narayan Mandal & Anr Versus Smt.Baby Devi & Ors ---------------------------------- 07. 21.11.2011 Heard the learned counsel for the petitioner. Nobody appeared on behalf of the respondent. Although, notice has already been served in admission matter. On 11.11.2011, when nobody appeared on behalf of the respondent, it was adjourned for today mentioning that if nobody will appear, the application may be heard in absence of the respondent. The petitioner has challenged the order dated 06.02.2009 passed by Munsif, Banka in Title Suit No.51 of 2006 whereby the prayer for amendment in the written statement has been rejected. The learned counsel for the petitioner submitted that only on the ground of delay, the prayer for amendment has been rejected. The learned counsel further submitted that still the evidence of the plaintiff has not been closed and evidence is going on and moreover the amendment sought for by the plaintiff is with regard to subsequent event. According to the learned counsel during the pendency of the suit, he filed a title suit being title Suit No.56 of 2008. Thereafter in the year 2008 itself, the application for amendment was filed seeking permission to amend the written statement regarding the filing of the title suit No.56 - 2 - of 2008 by the petitioner against the respondent. From perusal of the impugned order, it appears that the learned Court below rejected the amendment application holding that the amendment has been sort for after commencement of the trial. It may be mentioned here that the amendment sought for by the petitioner was with respect to the subsequent event. The other part of the amendment sought for was only formal in nature. In 2006 (4) Supreme Court cases 385, the Apex Court has held that the object of order 6 Rule 17 is that the Court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudices to the other side. The rule of amendments is essential rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. It appears that in that case also, the amendment was sought for regarding the cause of action arose during the pendency of the suit. The Apex Court observed that in the present case since the cause of action arose during the pendency of the suit proposed amendment to have been granted because the basic structure of the suit has not changed and there was merely a change in the nature of relief claimed. In the present case at our hand also, - 3 - admittedly, the petitioner was seeking permission to amend the written statement introducing the fact regarding the filing of title suit by the petitioner. As stated above still the plaintiff evidence is going on and, therefore, in my opinion, no prejudice has been caused to either party. So far the Proviso added to Oder 6 Rule 17 by the Amendment Act, 22 of 2002 is concerned, it may be mentioned here that C.P.C. is a procedural Code and although the Proviso has been couched in the language of mandatory form its only aim being to advance the cause of administration of justice, the Court should adopt liberal approach and amendment should be allowed. Here since the cause of action arose during the pendency of the suit, in my opinion, the learned Court below has failed to exercise a jurisdiction vested in it by law and thereby occasion possible failure of justice. In the result, this writ application is allowed and the impugned order is set aside. The application or amendment filed by the petitioner is thus allowed. The petitioner shall incorporate the amendment within the period prescribed in C.P.C. from the date of receipt of a copy of this order in the Court below. Sanjeev/- (Mungeshwar Sahoo,J.)