IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9568 of 2011 Anil Kumar Singh & Ors Versus Ratanesh Prasad Singh & Ors ----------- 17. 29.11.2011 Heard the learned counsel, Mr. Ashok Priyadarshi on behalf of the petitioners. It appears that notices have already been served on the respondents but nobody appeared on behalf of the respondents. (2) This application under Article 227 of the Constitution of India has been filed by the petitioners against the order dated 09.08.2006 passed by Subordinate Judge III, Muzaffarpur in Partition Suit No.285 of 1999. (3) The learned counsel for the petitioners submitted that the Partition Suit No.285 of 1999 was preliminarily decreed and it is held that the plaintiff has got 8/35 share in the suit property. During final decree proceeding Pleader Commissioner was appointed who found that measurement of the house in question is 5757.50 sq. feet whereas in the plaint it is mentioned as 4941 sq. feet. In such circumstances, the amendment application was filed for amending the schedule of the plaint from 4941 sq. feet to 5757.50 sq. feet but the learned Court below wrongly rejected the application on frivolous ground. According to the learned counsel, admittedly, the suit premise is joint family property and preliminarily the partition suit has been decreed. The Pleader Commissioner also measured 2 the suit premises and because of discrepancies in the area mentioned in plaint and the area mentioned in the Pleader Commissioner’s report, amendment was needed which is necessary to bring the real question in controversy between the parties. As stated above, nobody appeared on behalf of the respondents. (4) In the case of Sajjan Kumar vs. Ramkishan, (2005) 13 SCC 89, the three Judges Bench of the Hon’ble Apex Court held that the proposed amendment sought the correction of the description of the suit premises in the plaint and, therefore, there would be complication at the stage of execution if amendment is not allowed. To avoid such complication, the description of the suit premises as given in the plaint is required to be corrected. From perusal of the decision, it appears that in that case at the final stage, amendment application was filed for correction in the description of the suit premises. Here, in the present cast at our hand also, the plaintiffs only prayed for correction of the suit premises on the basis of the Pleader Commissioner’s report. Admittedly, the suit premise was measured by the Pleader Commissioner and the area has been found as mentioned in the report. The area mentioned in the plaint therefore, requires correction. (5) It is also well settled principles of law that the Courts have very wide discretion in the matter of amendment of pleading. The power must be exercised 3 judiciously and with great care while deciding application for amendment. The Court must not refuse bonafide, legitimate, honest and necessary amendment vide (2009) 10 SCC 84(Revajeetu Builders and Developers vs. Narayanaswami and sons). (6) In (2006) 6 SCC 498(Baldev Singh and ors. vs. Manohar Singh and ors.), the Hon’ble Apex Court has held that the provision as contained in Order 6 Rule 17 confers wide jurisdiction on the Court to allow either party to alter or amend pleadings at any stage of the proceeding on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. In the present case as has been stated above, admittedly, the property is joint. There is only discrepancies/differences in the measurement mentioned in the plaint and mentioned in the Pleader Commissioner’s report. (7) In view of the above facts and circumstances of the case, in my opinion, while rejecting the prayer for amendment, the learned Court below has failed to exercise the jurisdiction vested in it by law and by the failure to show exercise it has occasioned a possible failure of justice. Such an error committed by the trial court is liable to be corrected by this Court in supervisory jurisdiction under Article 227 of the Constitution of India. (8) In the result, this writ application is allowed. 4 The impugned order is set aside and the amendment sought for by the plaintiffs is allowed. The plaintiffs shall incorporate the amendment within the prescribed period provided in C.P.C. within two weeks from the date of receipt of a copy of this order in the Court below. Saurabh ( Mungeshwar Sahoo, J.)