MAHAMAYA PRASAD CHAUDHARY Vs. THAKKAN CHAUDHARY

JUDGEMENT

(1.) THE civil revision has been filed against the order dated 14.9.2004 passed by Subordinate Judge I, Rosera (Samastipur) in Partition Suit No. 46 of 2003, whereby the petition filed by the plaintiff -petitioners for amendment of the plaint has been rejected.

(2.) THE plaintiff -petitioners filed the abovementioned suit for partition against the defendants -opposite party. The defendants appeared and filed written statement. However, the suit has not been taken up for hearing. The petitioners filed application for amendment of the plaint. The amendment was for deletion of one plot from the schedule of the plaint. The said petition for amendment was rejected by the court below on the ground that if the amendment sought for is allowed it will change the nature of the suit.

(3.) HOWEVER , on consideration this much is obvious that it is a suit for partition. The suit has not been taken up for hearing. Therefore, amendment of the pleadings can be made in view of the amended provisions of the Code of Civil Procedure. It is the plaintiff -petitioners who are to suffer loss for not amending the plaint. If at all the defendants have any objection they can file additional written statement after amendment as it is well settled principle of law that after amendment other side acquires right of rebuttal. Moreover, the court below has committed error in holding that if the amendment is allowed it wouid change the nature of the suit.