IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 91 of 2010. Decided on : July 23, 2010. Om Parkash & others …Petitioners. Versus Dev Raj & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Anuj Gupta, Advocate. For respondents 1 to 6 Mr. Navlesh Verma, Advocate. Surjit Singh, J. (Oral) Heard and gone through the record. 2. Petitioners are defendants in a suit for partition, instituted against them by respondents-plaintiffs in the trial Court. When the suit was instituted, an application for partition, moved before revenue officer, was also pending. That application is alleged to have been decided during the pendency of the suit and the order of partition is alleged to have attained finality. Not only this, it is also alleged that partition by metes and bounds has also taken place, pursuant to the order of revenue officer. With these allegations, petitioners-defendants made an application under Order 6 Rule 17 CPC for amending the written statement, for taking the plea that on account of partition 1 Whether reporters of Local Papers may be allowed to see the Judgment? - 2 - having taken place by metes and bounds, pursuant to the order of revenue officer, suit filed by the respondents- plaintiffs, had become infructuous, because, subject matter of the suit, according to the defendants-petitioners, was included in the subject matter of partition proceedings before the revenue officer and the partition of that property has also been effected. That application has been dismissed by the trial Court, vide impugned order, dated 2.3.2010, copy Annexure P-5. Petitioners are aggrieved by this order. 3. I have heard the counsel for the parties and gone through the record. 4. Learned trial Court has held that alleged order of partition was in existence, even at the time, when initial written statement was filed and, therefore, plea raised by the petitioners –defendants that partition had taken place after the institution of the suit and filing of written statement, was not correct. Observation of the trial Court is not correct. Trial Court has observed that date of order of partition, passed by the revenue officer is 11.6.2003. Order dated 11.6.2003, was passed by the Sub Divisional Collector in appeal, against an earlier order of partition, passed by the revenue officer and by that order, earlier order of partition had been set aside and the case remanded to the revenue officer. Petitioners-defendants pleaded that pursuant to the order dated 11.6.2003, of the Sub Divisional Collector, revenue officer had passed the order of - 3 - partition afresh and carried out partition by metes and bounds. That means, alleged partition has been carried out pursuant to an order passed after 11.6.2003. If that is so, reasoning given by the trial Court cannot be endorsed. 5. For the fore going reasons, present petition is allowed, impugned order is set aside and the application of the petitioners-defendants for amendment of their written statement, is allowed. Parties are directed to appear before the trial Court on 6.8.2010. July 23, 2010 (PC). (Surjit Singh), J.