(1.) The petitioners have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dtd. 24/1/2018 passed by the learned Sub. Judge-IV, Hajipur in Title Suit No. 253 of 2001, whereby and whereunder the petition dtd. 16/8/2017 filed by the plaintiff/respondent no. 1 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') has been allowed.
(2.) It emerges from the record that the plaintiff/respondent no. 1 filed a partition suit bearing Title Suit No. 253 of 2001 in the Court of learned Sub. Judge-I, Hajipur seeking 1/7th share in Schedule-I of the plaint after partition of the suit property and also for a direction to defendants-2nd set, petitioners herein, to execute the sale deed in favour of the plaintiff/respondent no. 1 for the land of Schedule-2 along with house mentioned in Schedule-2 property of the plaint with alternative prayer that if the defendants-2nd set/petitioners failed to executed the sale-deed, the same might be executed through the process of the Court.
(3.) Learned senior counsel appearing on behalf of the petitioners has submitted that the order of the learned trial court is not sustainable and it has been passed in most mechanical manner without appreciating the objections and contentions raised by the petitioners. The impugned order is illegal, arbitrary and is without jurisdiction and the same is liable to be set aside. The learned senior counsel further submitted that the learned trial court failed to take into consideration the fact about share of the plaintiff/respondent no. 1 to the extent of 1/7th in the suit property being decreed in Partition Suit No. 102 of 2000. Once, the share of the plaintiff/respondent no. 1 was decided, it was not open for him to claim further share in the suit property on account of death of his brother, defendant no. 2- Paras Nath Chaudhary. The learned trial court has not considered that at the time of his death, Paras Nath Chaudhary was not holding any share in the suit property. Moreover, the defendants-2nd set, petitioners herein, have already purchased property in dispute long before and allowing the amendment at this stage would cause serious prejudice to the petitioners. Learned senior counsel further submitted that since the partition of the suit land along with building existing on it has already taken effect in the Partition Suit No. 102 of 2000, amendment cannot be allowed unless the judgment and decree of partition suit No. 102 of 2000 are set aside. Learned senior counsel further submitted that the learned trial court has also not considered that an application under Sec. 11 of the code has been pending and without disposal of the application under Sec. 11 of the Code, it was not proper for the learned trial court to hear and allow the amendment petition filed by the plaintiff/respondent no.1. The plaintiff/respondent no. 1 in the garb of the proposed amendments intends to get the decree passed in their partition suit No. 102 of 2022 nullified. Learned senior counsel further submitted that the learned trial court has not considered that the amendment petition has been filed after trial has commenced and the same was barred under proviso to Order 6 Rule 17 of the Code. Learned senior counsel also submitted that the amendment has been sought after much delay since the defendant no.2-Paras Nath Chaudhary died much ealier to the amendment and the plaintiff got his name expunged vide order dtd. 15/6/2012 by filing application dtd. 18/10/2011, so, there was no occasion for the plaintiff/respondent no. 1 to keep on waiting for such long period and the plaintiff/respondent no. 1 has failed to show that despite due diligence, he could not move the amendment petition earlier. The learned trial court failed to appreciate the fact that on the date of death, defendant no. 2-Paras Nath Chaudhary was not in possession of any share of the suit property and he along with his five brothers had already sold their share to the petitioners much before filing of the present suit. At the same time, learned trial court while allowing the amendment petition, did not provide proper opportunity to the defendants-2nd set/petitioners to rebut the same. Thus, the learned counsel submitted that in view of the aforesaid facts, the impugned order is bad in the eye of law as well as on fact and fit to be set aside as the impugned order is illegal and without jurisdiction.