IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1129 of 2007 SOGARATH SAHNI & ANR Versus SMT.SHAIL DEVI & ORS ----------- 2 22/9/2008 Heard counsel for the defendant- petitioners. In the opinion of this Court the impugned order allowing amendment does not suffer either from any material irregularity or jurisdictional error so as to be interfered by this Court under section 115 of the Code of Civil Procedure Code. The suit has been filed for partition and is basically revolving around 2/9th share as being claimed by the plaintiff who is the daughter of Roshan Sahni, would be getting such share by way of linage of the family. In this context paragraph nos. 4 and 5 of the plaint becomes referable which are quoted hereinbelow:- “4.That Roshan Sahni was taken away by Sogarath Sahni and as yet Roshan Sahni could not available and he has became traceless since more than 20 years.” “ 5. That according to civil death of Roshan Sahni his property developed upon his widow and the plaintiffs who are the daughter of Roshan Sahni.” 2 Admittedly, when the suit was filed and the written statements were also entered into by the other side i.e. the petitioners, there was a clear assertion that the plaintiff’s case depended factually on the death of Roshan Sahni, father of the plaintiff. That fact was clearly stated in the plaint and was never sought to be controverted by the petitioners. It was in this backdrop that a prayer was sought to be added without making any change in the pleadings to the effect that a declaration be also made that Roshan Sahni has already died by way of civil death since he became traceless for the last 20 years and nothing had been heard about him in this period. This part of the declaration being an additional relief only is virtually getting the suit of partition filed by the plaintiff, Smt. Shail Devi, daughter of Late Roshan Sahni, is only clarificatory in nature so that nothing remains for speculation as with regard to her share in 3 the family property. That being so, this Court would not find that on account of proposed amendment as allowed by the court below nature of the suit will change. It will still remain a partition suit and the question of prejudice on account of introduction of this relief at the belated stage being canvassed by the defendant-petitioner is wholly misconceived. Paragraph nos. 4 and 5 of the plaint had infact specifically made out such case of the plaintiff- opposite party which was never controverted by the petitioner in written statement. Reliance placed by the counsel for the petitioner on the judgment of this Court in the case of ‘Syed Hasibuddin Vs. Akram Hussain & Ors’ reported in 2006(4) PLJR 260 will have no application to the facts of the present case where no new fact has been impleaded and only relief that too by way of additional relief has been sought. That being so, this Court would not find any reason to interfere with the 4 impugned order. Accordingly, this application, being wholly misconceived, is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar