IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1180 of 2008 BAIJNATH PRASAD & ORS Versus AJAI PRASAD KESHRI & ORS ----------- 5/ 19.05.2009 Heard counsel for the parties. The present revision petition is directed against the order dated 14.7.2008 passed by Ist Munsif, Ara, Bhojpur in Title Suit no. 66 of 2006 by which he refused to allow the amendment to be inserted in the plaint filed by the petitioners. The amendment which was sought to be inserted was in respect of the formation of the suit property i.e. Plot No. 924 by parts of two plots namely Plot nos. 673 and 674. While seeking amendment, the petitioners pleaded that they did not have any knowledge about the formation of the plot no. 924 and when they got it examined and checked as also measured by an Amin, they could be informed that the two plots have formed the suit plot no. 924. Learned Munsif went on two steps while rejecting the prayer for amendment that the trial had begun and two witnesses have been examined and, as such, under the newly amended Code of Civil Procedure, the very petition was not maintainable. Learned counsel for the petitioners has reiterated the same arguments which have been made by the petitioners in their petition seeking amendment in the plaint. As against that, the learned counsel for the opposite parties has referred to the provision of Order VI Rule 17 of the Code of Civil Procedure, specially, the proviso appended through the new amendment which requires an explanation on due - 2 - diligence and in spite of that, not getting the fact into the knowledge so as to pleading it earlier. Besides, learned counsel for the opposite parties has placed reliance upon a decision of this Court in the case of Sayed Hasibuddin Vs. Syed Md. Akram Hussain and ors. reported in 2006(4) PLJR 260. As was submitted by learned counsel for the opposite parties, no amendment could be allowed after the hearing of the suit has started unless the parties seeking amendment to be inserted satisfy the court that in spite of due diligence he could have grasped all the facts earlier to the filing of his pleading and as such, on account of getting the fact, he was pleading the same. I have gone through the petition filed by the petitioners in the court below seeking amendment. The petitioners have very much pleaded that they were not knowing the factum of formation of plot no. 924 and when they engaged an Amin and got it measured and got it checked further on the formation of the plot, they came to know that the plot in question i.e. plot no. 924 was formed by two plots aforementioned. The art of measuring lands which is the vocation of an Amin is not bestowed upon any one and specially a villager. One could be knowing the formation of a plot only when he engages an expert, as in the present case, put forth by the petitioners in their amendment petition. So, the case of application of due diligence appears made out. At least, I am satisfied and as such, direct the court below that the amendment as prayed for by the petitioners shall be allowed on payment of Rs.500/- to the opposite parties by the - 3 - petitioners in the court below even if the trial has begun. Revision petition is allowed in the above terms. Anil/ (Dharnidhar Jha, J.)