PRABHAT RAM Vs. BANNA RAM

JUDGEMENT

(1.) BY THE COURT: 1. The petitioner by this writ petition assails the order dated 8.5.2018 passed by the learned Civil Judge, Viratnagar, Distt. Jaipur whereby he has allowed the application filed by the applicant-plaintiff under Order 6 Rule 17 CPC for amendment in the plaint.

(2.) The petitioner-defendants submits that the plaintiff is a co- sharer and all the co-sharers have their independent possession of their respective share over the property. The plaintiff has filed a suit wherein it has been mentioned that the land was never partitioned. It is the submission of the petitioner that there was a Well in the said land which was being used by all the parties for the purpose of cultivation and was in joint possession. An application for the purpose of electricity connection was submitted to the Electricity Department at Viratnagar, and cost of the electricity connection was born by the plaintiff and defendant nos. 3 and 9 to the plaint. The plaintiff filed an application making averments that the petitioners-defendants were trying to have electricity connection in their exclusive name, and prayed not to allot any electricity connection in favour of Prabhat without consent of plaintiffs and, therefore, an injunction suit was filed with prayer to restrain JVVNL from issuing electricity connection exclusively in the name of petitioner Prabhat. While the suit was pending, an application under Order 6 Rule 17 CPC came to be filed by the plaintiffs for seeking amendment in the plaint after framing of the issues wherein certain paras of the plaint were sought to be amended.

(3.) Counsel for the petitioner submits that the trial court has fallen in error in allowing the application for amendment in part as there was no occasion to have allowed the amendment at this stage as the trial has begun, and as per proviso under Order 6 Rule 17 CPC, the commencement of amendment after trial can only be allowed when the trial court reaches to the conclusion that due diligence was exercised by the party seeking amendment. Counsel also submits that amendment application was moved before framing of issues which was rejected by the trial court and thus no new occasion had arisen in this petition. Counsel has relied upon the judgment reported in 2009 (2) SCC 409-Vidyabai and ors. Vs. Padmalatha and anr.