KRISHNA BHAGAT Vs. BHIKHAINIA DEVI

JUDGEMENT

(1.) (Oral)- Heard the learned counsel, Mr. Shashi Shekhar Dwivedi on behalf of the petitioner and learned counsel, Mr. Binod Kumar Singh on behalf of respondent No.1(b). In spite of notice in admission matter to other respondents and in spite of the fact that the names of the learned Advocates are printed in the daily cause list on behalf of the other respondents, nobody appeared.

(2.) This application under Art. 227 of the Constitution of India has been filed by the plaintiff petitioner against the order dated 10.12.2011 passed by learned Sub Judge Vth, Motihari in partition suit No.300 of 2000 whereby the Court below rejected the amendment application filed by the plaintiff petitioner.

(3.) It appears that the plaintiff petitioner filed the aforesaid partition suit claiming partition in the suit property. The defendants appeared and filed contesting written statement. In the written statement, they also took plea that there was compromise decree in earlier title suit No.85 of 1942. Thereafter, the petitioner filed amendment application which is Annexure '3' to this writ application. By way of amendment, the plaintiff pleaded that the plaintiff had no knowledge about the compromise decree passed in title suit No.85 of 1942 and further alleged that that suit was a collusive suit between the parties. Initially, this amendment application was allowed by the learned trial Court by order dated 12.01.2010. Against the said order, the defendant respondent filed C.W.J.C. No.3242 of 2011. This Court without giving any opportunity of hearing to the plaintiff by terms of order dated 10.05.2011 set aside the order holding that while allowing the amendment, the Court below has not considered Sec. 90 of the Evidence Act. The High Court remanded the matter and directed to pass a fresh order. Now, the Court below by this impugned order has rejected the amendment application on the ground that the trial Court had in fact not considered Sec. 90 of the Evidence Act and also that the plaintiff had not filed the amendment application just after filing the written statement or after three years of filing of the written statement.