LAL BABU RAI Vs. RAMAGAYA RAI

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel appearing on behalf of the respondent. The petitioners are aggrieved by the order dated 5.1.2011 passed by the Court of learned Sub-Judge-VIII, Chapra in Partition Suit No. 325 of 2006 whereby the application filed by the plaintiff/respondent under Order VI, Rule 17 has been allowed.

(2.) Assailing the impugned order, learned counsel for the petitioners has submitted that the application under Order VI, Rule 17 was allowed at a very belated stage when the hearing was practically over. He submits that a suit was filed in the 2006. In 2007 the plaintiff respondent No. 5 filed an amendment petition for amendment of the plaint which was allowed vide order dated 23.6.2007. Thereafter, again an application for amendment was filed which came to be allowed vide order dated 5.1.2011.

(3.) Learned counsel for the petitioners has submitted that impugned order is in violation of the spirit of proviso to Order VI, Rule 17 of the Code of Civil Procedure. She submits that there was absolutely no assertion in the amendment petition that in spite of exercise of due diligence, the fact sought to be brought by way of amendment, could not be brought on record earlier. She further submits that even in the impugned order there is no discussion as regards satisfaction of the Court that in spite of due diligence exercised by the respondent/plaintiff, the fact could not be brought on record earlier. She has relied upon a judgment (Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka, 2013 2 PLJR(SC) 356). Referring to the judgments aforesaid, she submits that in the facts and circumstances of the case, amendment petition should not have been allowed after commencement of trial.