1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.8667 of 2006. Rakesh Kumar son of Shri Meghraj and Another VERSUS Shabbir Mohd. @ Shabbir Hussain and Others Date of Order :::: 18/08/2009 Hon'ble Mr. Justice Dalip Singh Mr. Mahesh Gupta Counsel for the Petitioners. Mr. Ravi Kasliwal } Mr. Surendra Pal Singh } Counsel for the Respondents Per Court : Heard learned counsel for the parties. This writ petition has been filed against the order dated 28.09.2006 by which the application for amendment of the plaint under Order 6 Rule 17, C.P.C. filed on 17.05.2006 has been rejected by the learned trial Court. The suit is one for cancellation of the sale-deed, alleged to have been executed by the defendant No.1 in favour of the defendant Nos.2 and 3. The case of the plaintiff-petitioner is that the defendant No.1, who is khatedar of the land has borrowed a sum of Rs.4,06,000/- and mortgaged the land in question to the plaintiff and also handed-over to the plaintiff. Subsequently, 2 after the alleged mortgage the defendant No.1 sold the land by registered sale-deed dated 27.09.2005 to the defendant Nos.2 and 3 for a sum of Rs.2,20,000/-. The plaintiff also filed an application for grant of temporary injunction for protection of his alleged possession over the land in dispute. To show his possession, the plaintiffs had alleged in Para 6 and answered in the plaint that the plaintiff had first shown the crop of `sarso' and thereafter crop of `methi' on the land in dispute. The defendant filed a reply to the temporary injunction application, wherein it was alleged that no such crop of `sarso', as alleged by the plaintiff ever was cultivated on the land and in fact the defendant Nos.2 and 3 are in possession and they had been shown the crop of `methi & soyabine' over the land in question. After the aforesaid reply to the application for temporary injunction was filed by the defendant Nos.2 and 3 the plaintiff-petitioner filed the present application rejecting leave of the Court to amend the plaint and instead of the crops of `sarso' and `methi', it was sought to be submitted that the plaintiff may be permitted to be amended and in place of `sarso & methi' the words `soyabin & methi' may be allowed to be incorporated. This was objected to by the defendant, whose case was that the plaintiff was now trying to retract from the original plea taken in the plaint, which was incorrect as in fact the crops of `soyabine and `methi' had been cultivated by the defendant Nos.2 and 3, 3 as alleged in their reply and to the application for grant of temporary injunction and not `sarso-methi' as alleged by the plaintiff in the plaint, which was not correct. The learned trial Court taking into consideration the aforesaid facts and circumstances rejected the aforesaid application. So far as the aforesaid amendment is concerned, this Court is of the view that the intended amendment does not in any manner alter the nature of the suit and at the very initial stage even before the written-statements have been filed by the defendants. So far as the contention of the defendant Nos. 2 and 3 that the amendment has been sought only with a view to over come the difficulty of the plaintiff, as the contention of the crop of `sarso and methi' have been cultivated could not be proved by the plaintiff and which was false in the facts and circumstances of the case, which would negative case of possession over the land in question is concerned that the matter may be amended by the learned Court below while considering the merits of the case as to whether the earlier pleadings in the plaint, which are now said to be amended to a retraction of the admission or otherwise of the plaintiff or the wrong assertion of fact, which was negative the fact of possession of the plaintiff. In that view of the matter taking the over all views as no prejudice would be caused to the defendants, in case the amendment is allowed and the matter would reverse on the 4 ground and be appreciated of the fact, which has come in which this Court is inclined to allow this writ petition and set aside the impugned order. The amendment application filed by the plaintiff is allowed with costs of Rs.1,000/- each to the defendants. Subject to the above, the writ petition stands disposed of. (Dalip Singh) J. ashok/