RAJESH BHAGAT GUPTA Vs. BRAHMDEO SAH

JUDGEMENT

(1.) The present application has been filed "against the order dated 16.09.2019 passed by Munsif 1st, Munger in the Title Suit No. 5 of 2014/CIS No. 134 of 2014 whereby and whereunder petition dated 03.06.2019 filed by plaintiff has been allowed."

(2.) Learned counsel for the defendant no. 2/petitioner submits that the learned Court below ought not to have allowed the amendment petition of the plaintiff by which Schedules- I, II and III have been added containing the details of the property which were not provided in the plaint. It is submitted that specific plea in this regard has been made in paragraph-17 of the written statement that no details of partition or encroachment had been given in the plaint in support of the claim that the defendant no.2/petitioner had blocked 3 - 1/2 feet from northern end. It is submitted that such amendment has been allowed to be made after the evidences of the plaintiffs' witnesses as well as of the defendant no. 2/petitioner have been closed which will cause prejudice. It is further submitted that such amendment ought not to have been permitted also in view of the proviso to Order VI Rule 17 of the Civil Procedure Code which prohibits amendment if the matter could have been raised before commencement of trial by the party by exercising due diligence.

(3.) Having heard learned counsel for the defendant no. 2/petitioner and on consideration of the materials on record, this Court is not inclined to interfere in the matter. No doubt, the defendant no. 2/petitioner had raised an objection in paragraph-17 of his written statement with regard to details of the alleged encroachment by him not having been stated in the plaint. However, it transpires from paragraph-17 of the plaint itself that requisite details of the allegedly encroached portion had been mentioned such as Khesra No. 670 width 3 - 1/2 feet along with other details. The learned Court below has rightly observed that the plaintiff has not brought any new facts or materials rather the details of the partitioned property have been sought to be set out in schedules for purposes of further elucidation. It has been opined that omission to make the schedules in the plaint was owing to oversight on the part of counsel which was not intentional and the amendment would assist the court in better understanding the suit land.