IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18123 of 2011 Ram Dayal Singh Versus Kamta Singh & Ors ---------------------------------- 08. 30.11.2011. Heard the learned counsel, Mr. Sheel Bhadra Jha appearing on behalf of the petitioner and the learned counsel appearing on behalf of the respondents. By the impugned order dated 17.06.2008 passed by Sub Judge I, Kaimur(Bhabhua) in Title Suit No.58 of 2005, the amendment application filed by the plaintiff for amendment of the plaint has been rejected by the Court below on two accounts. Firstly, that the plaintiff was knowing this fact from before and secondly, that the amendment application has been filed at belated stage. The learned counsel for the petitioner submitted that still today no issues have been framed and, therefore, there is no question of prejudice arises and the learned Court below could not have rejected the amendment application on the ground of delay. On the other hand, the learned counsel appearing on behalf of the respondents submitted that this fact was known to the petitioner from before but after three years, the application has been filed for amendment of the plaint and, therefore, the learned Court below has rightly refused to allow the amendment application. The learned counsel further submitted that the plaintiff is trying to introduce a fact subsequently which is false. 2 From perusal of the impugned order, it appears that the learned Court below rejected the application on the ground of delay only. As stated by the learned counsel for the petitioner, still the issues have not been framed in the suit. In other words, the trial has not commenced in the suit. In the case of Baldev Singh and others vs. Manohar Singh and another, (2006)6 SCC 498, the Hon’ble Supreme Court has held that all amendments should be allowed liberally if it will not prejudice the other side. In the present case at our hand, now the issues have not yet been framed, therefore, there is no question of prejudice arises. In the case of Rajkumar Guruwara vs. S.K.Sarwagi and Company Private Limited and another, (2008)14 SCC 364, the Apex Court has clearly held that it is settled law that the grant of application for amendment shall be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party and (iii) when allowing amendment application defeats the law of limitation. In the present case at our hand, none of these facts arises in the case as the suit has been filed for partition. So far the fact that intended to be introduced by amendment is concerned, the merit of the same can be decided at the time of final hearing of the suit itself. In the aforesaid decision, the Apex Court has held that Order 6 Rule 17 C.P.C. confers 3 jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceeding on such terms as may be just. Such amendments seeking determination of the real questions of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally then those which are sought to be made after the commencement of the trial. In view of the above settled law laid down by the Apex Court and the fact that still issues have not been framed, in my opinion, the learned Court below has not exercised jurisdiction vested in it by law and, therefore, the impugned order is unsustainable in the eye of law. In the result, this writ application is allowed. The impugned order dated 17.06.2008 is set aside and the plaintiff’s application for amendment is allowed. The plaintiff shall incorporate the amendment in the plaint within the time stipulated in C.P.C. within two weeks from the date of receipt of a copy of this order in the Court below. The defendant, if so advised may file additional written statement so far the amendment portion is concerned only. Saurabh (Mungeshwar Sahoo,J.)