IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18568 of 2011 Radhe Chand Lal Chowdhury Versus Sardar Mahendra Singh ---------------------------------- 06. 20.12.2011 Heard the learned counsel for the petitioner and the learned counsel for the respondent. The plaintiff-petitioner has filed this application under Article 227 of the Constitution of India for setting aside the order dated 09.07.2008 passed by Munsif, Ist, Munger in title suit No.12 of 1995 / 25 of 2005 whereby the learned Court below allowed the amendment in the written statement. The learned counsel for the petitioner submitted that earlier the wife of the defendant filed application for being added as party in the eviction suit filed by the petitioner for eviction of the defendant on the ground of personal necessity and the prayer of the wife of the defendant was rejected. Subsequently, the defendant filed amendment application praying for allowing the amendment to the effect that his wife is the real owner of the suit property which was also rejected but by the present amendment, the learned Court below by allowing the amendment in the written statement allowed the defendant to bring on record the same set of facts which has already been rejected by the Court earlier. The learned counsel further submitted that in - 2 - eviction suit, the question of title cannot be gone into and the wife of the defendant obtained the decree in her favour collusively by compromising the case wherein the petitioner was not a party and, therefore, the learned Court below could not have allowed the amendment application. On the other hand, the learned counsel for the respondent submitted that the applications for being added as party was filed by the wife of the defendant. The amendment application earlier was filed while the wife of the defendant was alive. According to the defendant, a decree has been passed in favour of his wife and the wife is the real owner of the property and after her death, the present defendant has inherited the property as owner thereof and, therefore, to bring these subsequent facts, the application for amendment was filed by the defendant. Considering these facts and circumstances of the case and considering the facts, this is the subsequent fact, the learned Court below allowed the amendment application. The learned counsel relied upon a decision of the Apex Court reported in A.I.R. 2003 S.C. 1663 Ushabala Saheb Swami Vs. Kiran Apaso Swami. From perusal of the impugned order, it appears that the learned Court below considered all these aspects of the matter which is being raised before this - 3 - Court by the petitioner. It is well settled principle of law that the merit of the amendment cannot gone into at the time of considering the amendment application. In the case of Rajesh Kumar Vs. K.K. Modi 2006 (4) S.C. 385, the Apex Court has held that while considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by application of amendment are not to be adjourned at the stage of allowing the prayer for amendment. It is also well settled that the Court is required to take into notice the subsequent change in law as well as subsequent change in facts. From perusal of the impugned order, it appears that the learned Court below considered the fact that during the pendency of this eviction suit, by a compromise decree title vested in the wife of the defendant-tenant and after death of the wife, the property has been inherited by the defendant. In fact, he inherited or not is a question that may be decided ultimately and not at this stage. In the case of Usha Bala Saheb Swami (Supra), relied upon by the respondent, the Apex Court has held that a prayer for amendment of the - 4 - plaint and a prayer for amendment of the written statement stands on different footing. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendment to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or taking inconsistent plea in the written statement would not be objectionable while altering or substituting new cause of action in the plaint may be objectionable. The suit is of the year 1995 and therefore, the Proviso added under Order 6 Rule 17 by Amendment Act, 2002 is also not applicable. Therefore, the Courts have got unfettered power to allow a party to amend his pleading. In view of the above facts and circumstances of the case, in my opinion, the learned Court below has rightly exercised a jurisdiction vested in it by law and, therefore, I find neither illegality nor impropriety nor jurisdictional error in the impugned order. Therefore, this writ application is dismissed. Sanjeev/- (Mungeshwar Sahoo,J.)