CW-6258/06 - Satya Narayan Vs. The Addl. Civil Judge (Jr.Dn.), No.1 Bikaner. : Judgment dt.22.8.08 1/2 S.B. CIVIL WRIT PETITION NO.6258/2006 Satya Narayan Vs. The Addl. Civil Judge (Jr.Dn.), No.1 Bikaner. Date of order : 22nd August, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J.K. Byaiya ) for the petitioner. Mr. M.S. Panwar) Mr. D.D. Chitlangi for the respondents. --------- 1. Heard learned counsels. 2. This writ petition is directed against the order dated 28.9.2006 whereby the learned trial court allowed the amendment of the plaintiff under Order 6 Rule 17 C.P.C. for additional prayer of seeking possession of the suit property while the defendant is having his possession under the sale deed executed by his mother. 3. This is a dispute between the two real brothers and the plaintiff is claiming on the basis of alleged Will executed by his mother whereas the defendant is claiming title and is in possession of the suit property under such registered sale deed executed by the mother. The suit is for cancellation of sale deed, which was filed by the plaintiff. 4. The learned counsel for the petitioner defendant submits that the prayer for possession cannot be allowed to be added at such a belated stage where the suit was filed way back in 1985 and the same was at the final stage of arguments. The present application was filed by the plaintiff and has been allowed by the learned trial court albeit wrongly. Learned counsel for the petitioner relies upon the decision CW-6258/06 - Satya Narayan Vs. The Addl. Civil Judge (Jr.Dn.), No.1 Bikaner. : Judgment dt.22.8.08 2/2 of the Hon'ble Supreme Court in Bharat Karsondas Thakkar Vs. M/s. Kiran Construction Co. & Ors. - 2008 AIR SCW 3192 wherein the Hon'ble Supreme Court reiterating the well settled principles held that if the character of the suit is likely to be substantially changed, the amendment cannot be allowed particularly at the belated stage. The proviso added to Order 6 Rule 17 C.P.C. w.e.f. 1.7.2002 is also to the same effect and, therefore, the amendment at the final stage of the suit cannot be liberally allowed. The present amendment seeking to add the prayer for possession is likely to change the character of the suit because it is basically beyond the frame of the original suit and the prayer made therein. 5. Learned counsel for the respondent, however, relies on the judgment of the Hon'ble Rajasthan High Court, Full Bench in AIR 1985 Raj. 185 – Ramdhan Vs. Bhanwarlal which was an election matter and the Court held that inadvertently the prayer clause did not contain the specific prayer and that could be allowed by way of amendment. The facts of the said case are clearly distinguishable from the facts of the present case. 6. Consequently, this writ petition is allowed and the impugned order dated 28.9.2006 is set aside. [ DR. VINEET KOTHARI ], J. item No.20 babulal/-