IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.177 of 2008 NIRALA PRASAD CHAUDHARY Versus SMT. SARITA CHAUDHARY & ORS ----------- 7. 28.8.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order refusing amendment as sought for by the plaintiff petitioner cannot be sustained for a simple reason that it was a partition suit in which the plaintiff has claimed his 1/3rd share. If the plaintiff, therefore, wanted to add pleadings by way of amendment in the plaint to the effect that out of that very property some income was being generated and as such he is also entitled for the share in that income from the date of institution of the suit, that could not have been refused. Mr. Ashok Priyadarshi, counsel appearing on behalf of the defendants opposite parties, however, contends that such amendment was malafide, inasmuch as earlier an application to the effect claiming 1/3rd share was also filed by the petitioner which had been already rejected. This Court will not agree with the aforementioned submission for a simple 2 reason that the earlier application was rightly rejected because there was no prayer to this effect in the plaint and therefore, when the plaintiff petitioner had sought amendment in the plaint, that could not have been refused on the ground of earlier rejection. That being so, this Court would hold that the impugned order refusing amendment in the plaint is a jurisdictional error. Consequently the civil revision application is allowed and the impugned order is set aside and the court below is directed to incorporate the amendment of plaint as prayed by plaintiff petitioner in his application dated 5.10.2007 not find any reason to sustain the impugned order rejecting amendment in the plaint. It has to be ordinarily allowed, refusal by exception. In that view of the matter, this application is allowed, the impugned order is set aside and the court below is directed to incorporate the amendment in the plaint. ( Mihir Kumar Jha,J.) Surendra/ 3