IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16298 of 2011 Pratyush Kumar Versus Arbind Kumar & Ors ---------------------------------- 05. 18.11.2011 Heard the learned counsel for the petitioner. This application under Article 227 of the Constitution of India has been filed by the defendant- petitioner against the order dated 16.08.2007 passed by Munsif Ist, Madhubani in eviction suit No.5 of 2001 whereby the learned Court below allowed the amendment application filed by the plaintiff-respondent. The plaintiff-respondent has filed the aforesaid eviction suit for eviction of the defendants from the suit premises on the ground of default only. After evidence of the parties were closed, arguments were advanced and, thereafter the amendment application was filed by the plaintiff seeking amendment of the plaint for providing the length and breadth of the shop premises and further stating that if partial eviction is granted then also it will not meet requirement of the plaintiff. The said application for amendment has been allowed. The learned counsel for the petitioner submitted that at such belated stage when the arguments have been concluded, the learned Court below has no jurisdiction to allow the amendment in view of the Proviso added under order 6 Rule 17 of the - 2 - Code of Civil Procedure. The learned counsel further submitted that the suit is only for eviction on the ground of default. Therefore, amendment for suit is not relevant and that the new facts have been introduced. In such circumstances, the petitioner’s shall be prejudiced. So far the submission that in view of Proviso added to Order 6 Rule 17 is concerned, in my opinion, the said Proviso will not apply in the present case because this suit is of the year 2001 and the Proviso added to Order 6 Rule 17 is by reason of Section 12 sub-Section 2 clause (b) of the Amendment Act 22 of 2002 with effect from 1st July, 2002. In 2007 (1) Supreme Court cases 765 and also in 2009 (12) Supreme Court cases 689, the Apex Court has already clarified the position that the Proviso added by the Amendment Act 22 of 2002 shall apply only in the suit which have been after 1st July, 2002. In 2006 (4) Supreme Court cases 385 Rajesh Kumar Aggrawal Vs. K.K. Modi, the Apex Court has held that the object of Order 6 Rule 17 is that the Court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Admittedly, in this case, no specification - 3 - about length and breadth of shop premises was given in the plaint. By way of amendment, the plaintiff wanted to introduce the length and breadth. In 2005 (13) Supreme Court cases 89 (Sajjan Kumar Vs. Ram Kishan), the trial Court as well as the High Court rejected the amendment application, the Hon’ble Apex Court held that if amendment is not allowed, it will create complication at the stage of execution and, therefore, to avoid such complication, the amendment should be allowed and the Apex Court allowed the amendment application. In the present case in exercise of discretion, the trial Court has allowed the amendment application, therefore, in my opinion, in supervisory jurisdiction under Article 227 of the Constitution of India, no interference is required. However, if so advised, the petitioner is at liberty to file additional written statement only to that part of the pleading for which amendment has been allowed. With this observation, this writ application thus stands dismissed. Sanjeev/- (Mungeshwar Sahoo, J.)