IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.846 of 2006 RAFIQUE KHAN & ORS Versus ASFAQUE KHAN & ORS ----------- 7. 21.11.2008 Heard Mr. Anil Kumar Mukund, learned counsel for the petitioners and Mr. V.Nath, learned counsel for the opposite parties. The impugned order rejecting amendment in the plaint is not only in a way against the observations made by this Court in an earlier inter party order dated 24.1.2005 in C.R.No. 471/2004 but is also against the principles of Order 6 Rule 17 C.P.C. This Court had made it clear that either of the party relying on the Will could seek a declaration with regard to the Will in this very suit and the probate case will not be maintainable. Thus when the plaintiffs-petitioners had filed an application seeking amendment in the plaint for assailing the correctness of the Will, the same could not have been refused on the ground that such amendment was belated or that certain plots mentioned in the Will were not subject matter of the suit. Neither of the aforesaid factors could infact have 2 led to change in the nature of the suit. More over, it is well settled that the delay by itself cannot be a ground for refusing amendment and as a matter of fact, in the facts and circumstances of this case, there would be little scope for the parties to contend that the Will which was sought to be made subject matter of the present suit by seeking amendment in the plaint was belated. Thus, the impugned order is definitely one vitiated by an apparent jurisdictional error and accordingly, the same is set aside. The amendment prayed in the plaint by the plaintiffs-petitioners is hereby directed to be incorporated. The defendants-opposite would be at liberty parties to file their additional written statement confined to the aforementioned amendment within a period of one month from the date such amendment is incorporated in the plaint. With the aforementioned observations and directions this Civil Revision Application is accordingly allowed. (Mihir Kumar Jha,J.) Surendra/ 3