IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18340 of 2011 Vijay Kumar Yadav & Ors Versus Sheonandan Yadav & Ors ---------------------------------- 07. 22.11.2011 Heard the learned counsel for the petitioners. The plaintiffs-petitioners have challenged the order dated 01.12.2008 passed by Munsif II, Gaya in Title Suit No.219 of 2002 whereby the Court below rejected the amendment application filed by the plaintiffs-petitioners. The learned counsel for the petitioners submitted that still today, no issues have even been framed and, therefore, there is no question of prejudice to the respondent arises. According to the learned counsel, the amendment necessitated because of the filing of the Pleader Commissioner’s report subsequently. If the amendment is not allowed in terms of report of the Pleader Commissioner, the same shall create complication at the stage of execution of the case, if ultimately it will be allowed in favour of the petitioners. In support of his contention, the learned counsel relied upon a decision reported in 2006(4) SCC 385= 2006 Supreme Court 1647(Rajesh Kumar Aggarwal & others vs. K.K.Modi & others). It appears that in spite of the fact that notice has been validly served and the respondents have appeared by filing vakalatnama, nobody appeared on 2 behalf of the respondents. In the decision relied upon by the learned counsel for the petitioners i.e. 2006 Supreme Court 1647, Rajesh Kumar Aggarwal and others(supra), the Apex Court has held that the object of Order 6 rule 17 is that the court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. At paragraph 19, the Apex Court has held as follows: “As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.” 3 In (2008)14 SCC 364, the Apex Court has held that the pretrial amendment should be more liberally allowed. In the present case, admittedly, still today no issues have been framed and, therefore, there is no question of any prejudice to the respondent arises. So far changing of nature of suit is concerned, the application has been filed by the petitioner in the amendment of the plaint because of the fact that subsequently the Pleader Commissioner submitted the report and moreover even if amendment is allowed the nature of the suit is not changed. The petitioner is not asking for any withdrawal of the admission made in the plaint. Considering the above facts and circumstances of the case, I find that the learned Court below has not exercised a jurisdiction vested in it by law thereby it has occasioned possibility of failure of justice. In my opinion, therefore, the impugned order is unsustainable in the eye of law. Accordingly, this writ application is allowed. The impugned order is set aside. The amendment application filed by the petitioner is allowed. The petitioner is directed to incorporate the amendment sought for in the plaint within the stipulated period as provided in C.P.C. within two weeks from the date of receipt of a copy of this order from the Court below. Saurabh (Mungeshwar Sahoo,J.)