SBCWP No.7295/05-Madan Lal & Ors. vs. Narendra Kumar & Anr. Order dt:13/10/2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJATHAN AT JODHPUR O R D E R Madan Lal & Ors. Versus Narendra Kumar & Anr. S.B.CIVIL WRIT PETITION NO.7295/2005 DATE OF ORDER : 13th October, 2009 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Abhinav Jain, for the petitioner-defendants. Mr.Sandeep Shah, for the respondent-plaintiff. BY THE COURT: 1. This petition has been filed by the defendants aggrieved by the order dated 25/10/2005 of the learned District Judge, Pratapgarh allowing the application for amendment of the plaintiff respondent in a partition suit filed on 20/7/2005 under Order 6 Rule 17 CPC. 2. By the said application seeking amendments in the plaint, the plaintiff claimed addition of one more relief in the plaint to the effect SBCWP No.7295/05-Madan Lal & Ors. vs. Narendra Kumar & Anr. Order dt:13/10/2009 2/6 that in the alternative the agriculture land situated at Pratapgarh- Bagwas Road on the southern side of the house of Bohra Jakiudeen may be handed over to him. 3. Learned counsel Mr. Abhinav Jain appearing for the defendants petitioner vehemently argued that the said addition of relief in the suit is foundation less and it is bound to change the character of the suit for partition filed by the plaintiff in which he claimed partition of only residential house situated at Brij Mohalla outside Dhamotar Gate in Pratapgarh and since no partition of the said agriculture land was claimed in the suit itself, additional relief could not be permitted to be claimed that too by way of amendment under Order 6 Rule 17 CPC. He further submitted that the amendment application was filed much belatedly after two years of commencement of the trial and the same cannot be permitted in view of amendment in Order 6 Rule 17 CPC w.e.f. 1/7/2002, which prohibits any such amendment after commencement of the trial unless there are cogent reasons for the same. He submitted that written statement was filed by the petitioner- defendants in the matter on 31/5/2003 and issues were framed by the learned trial court on 25/2/2004, therefore, at the stage of plaintiff's SBCWP No.7295/05-Madan Lal & Ors. vs. Narendra Kumar & Anr. Order dt:13/10/2009 3/6 evidence, such application could not be filed on 20/7/2005 and said application deserved to be rejected. He relied upon the decision of Hon'ble Supreme Court in the case of Ajendraprasadji N.Pande & Anr. vs. Swami Keshavprakashdasji N. & Ors. - 2007 AIR SCW 513, wherein, in para no. 57 the Court held that the trial is deemed to commence when issues are settled and the case is set down for recording of evidence. He, therefore, prayed for allowing the writ petition and setting aside the order of learned trial court. 4. On the other hand. Mr.Sandeep Shah, learned counsel appearing for the respondent plaintiff submitted that the claim of alternative relief by way of addition of one more prayer in the suit does not prejudice the defendants in any manner and such amendment, in the interest of justice, has rightly been allowed by the learned trial court. He submitted that the issues with regard to said agriculture land have already been framed by the learned trial court as issue nos. 3 and 4 and, therefore, even though the agriculture land was not sought to be partitioned in the main suit itself, on the basis of special plea raised by the defendants in their written statement and rejoinder filed by the plaintiff, the said amendment has been rightly SBCWP No.7295/05-Madan Lal & Ors. vs. Narendra Kumar & Anr. Order dt:13/10/2009 4/6 allowed by the learned trial court. He further submitted that there is no delay in filing the application under Order 6 Rule 17 CPC and relying on the judgments in the case of Rajesh Kumar Aggarwal & Ors. vs. K.K.Modi & Ors. - (2006) 4 SCC 385, G. Nagamma & Anr. vs. Siromanamma & anr.- (1996) 2 SCC 25 & Baldev Singh & Ors. vs. Manohar Singh & Anr. - JT 2006 (7) SC 139, he submitted that at the stage of plaintiff's evidence such amendment could be allowed by the learned trial court. 5. Having heard learned counsels at length and given my thoughtful consideration to the rival submissions and case laws cited at the bar, this Court is of the opinion that the learned trial court has erred in allowing the amendment application by the impugned order dated 25/10/2005. 6. Admittedly, the suit for partition was filed by the plaintiff only in respect of residential house and not in respect of agriculture land in question. On the basis of mention in the special plea by the defendants in their written statement that the plaintiff was given away the agriculture land in family settlement dated 7/12/2000 and had SBCWP No.7295/05-Madan Lal & Ors. vs. Narendra Kumar & Anr. Order dt:13/10/2009 5/6 relinquished his rights in the said residential house, therefore, could not claim partition of the same does not empower the plaintiff to claim relief in the same suit in respect of said agriculture land, even though by way of alternative prayer. It is well settled that relief cannot be granted without proper foundation being laid for the same in the plaint itself supported by subsequent evidence. 7. In the present case since the partition suit itself was filed only for residential house and not for the agriculture land, the addition of the alternative prayer by way of impugned amendment being allowed by the learned trial court was bound to change the character of the suit also and to expand the scope of suit beyond its original frame work. Such an amendment which changes the character of the suit itself cannot be permitted much less belatedly. The very purpose of amendment in the Order 6 Rule 17 CPC is to curtail the endless amendments in the plaint and expedite the trial. This purpose was obviously sought to be defeated by seeking amendment for property which was not even subject matter of the suit for partition. The said amendment was, therefore, wrongly allowed by the learned trial court. SBCWP No.7295/05-Madan Lal & Ors. vs. Narendra Kumar & Anr. Order dt:13/10/2009 6/6 8. Consequently, this writ petition is allowed and the impugned order dated 25/10/2005 passed by the learned trial court is set aside. No order as to costs. (DR.VINEET KOTHARI), J. item no.4 baweja/-