IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1012 of 2006 SHIYA SHARAN MANDAL @ SIYA PRASAD MANDAL & ORS Versus RAJ KUMAR MANDAL & ANR ----------- 5 17.11.2008 Heard counsel for the parties. With regard to the objection of the office as with regard to the execution of Vakalatnama, counsel for the opposite party No.1 would submit that the Vakalatnama executed by opposite party No.1 by a thumb impression has been duly identified. In that view of the matter the objection in office note is directed to be ignored. On merits, this Court would not find any error in the impugned order rejecting amendment in written statement at a grossly belated stage. This Court would find that the scope of earlier suit, Title Suit No. 31 of 1985 was not only with regard to enforcement of an agreement for sale dated 5.6.1978 confined to Plot No. 9313 but a prayer was also made therein with regard to a declaration of right, title and interest in respect of a separate plot measuring 5 katha and 5 dhurs of land. In that view of the matter the dismissal of the earlier suit due to default even otherwise could not have stood as a bar in terms of Order IX Rule 4 of the Code of Civil Procedure. That being so, this Court would not find any error in the impugned order inasmuch as the Court below having 2 taken into consideration that such amendment in the written statement for incorporating the facts with regard to the earlier suit, Title Suit No. 31 of 1985 had sought to be introduced at the stage of argument. The aforesaid plea sought to be introduced after closure of evidence could have led to de novo trial of the suit, which was rightly rejected by the court below. Thus, this Court would not find any error in the impugned order and accordingly, this Civil Revision application is dismissed. Bibhash (Mihir Kumar Jha, J.)