IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19790 of 2011 Raj Kishore Versus Raj Kumar Dalmiya & Ors ---------------------------------- 5. 07.12.2011 Heard the learned counsel for the petitioner. The defendant have filed this application under Article 227 of the Constitution of India against the order dated 21.7.2011 passed by sub Judge – VIII, Muzaffarpur in title Suit No. 122 of 2007 whereby the learned court below allowed the application filed by the plaintiff under Order 6 Rule 17 for amendment of the schedule of the plaint by giving correct boundaries of the suit properties. It appears that the parties have concluded their evidence and the case has been posted for argument and the defendants have also completed the argument. The learned court below by the impugned order found that the plaintiff filed the application for amendment on the ground that at the time of argument it could be detected that the boundary of the suit property has been wrongly described and, therefore plaintiff filed the application for amendment. The learned counsel for the petitioner submitted that after commencement of trial the amendment application could not have been allowed by the court below. 2 As stated above, by amendment in the plaint the plaintiff is not producing new facts in the case. He has sought only to amend the boundary of the suit property in the schedule of the plaint. In the case of Sajjan Kumar Vs. Ram Kishan (2005) 13 SCC 89 the Apex Court has held that if the amendment in the description of the suit property is not allowed to be made it will create needless complication at the stage of execution in the event of success of plaintiff in the suit. It appears that in that case in the written statement the defendant has taken the wrong description of the suit property. At the stage of hearing in that case also application for amendment of the description of the suit property was made by the plaintiff and the trail court rejected the said prayer. In civil revision the High Court also rejected the prayer. The Hon’ble Supreme Court set aside the order of the trial court as well as of the High Court and held that while rejecting the prayer for amendment the court below has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of supervisory jurisdiction. This decision has been followed again by the Hon’ble Apex Court in the case of Peethani Suryanarayana and another Vs. Repaka Venkata Ramana Kishore and others (2009) 11 3 SCC 308. In that case it appears that after final judgment and preliminary decree the plaintiff was allowed to amend the description of the suit property. In my opinion, therefore, in the present case, the plaintiff did not bring a new fact before the court below by way of amendment. He only sought the amendment regarding the description of the suit property and, therefore, in my opinion, the learned court below has rightly exercised a jurisdiction vested in it by law. According to the plaintiff this mistake could be detected at the time of argument of the case, and therefore, in my opinion the proviso to Order 6 Rule 17 C.P.C. will also not come in the way. Accordingly, this writ application is dismissed. S.S. (Mungeshwar Sahoo, J.)