1. The petitioner is aggrieved by the order dated 5.5.2015, delivered by the trial Court, below Exhibit 89 in Special Civil Suit No.24 of 2011, which has resulted in the rejection of an application seeking amendment to the plaint under Order VI Rule 17 of the Code of Civil Procedure (“CPC”).

2. The petitioner contends that Special Civil Suit No.24 of 2011 has been filed for seeking declaration, partition, separate possession and perpetual injunction. Respondent Nos.1 and 2 are the original defendants, who are real brothers of the petitioner / plaintiff. Respondent Nos.3 and 4 are the real sisters of the petitioner.

3. The father of the petitioner, who originally hails from Jaunpur, in Uttar Pradesh has migrated to Shrirampur in 1972, where he has started his business.

4. In the suit preferred by the petitioner, defendant Nos.3 and 6 have not caused an appearance despite service and hence the suit has proceeded ex parte against these two defendants by order dated 11.10.2011. Defendant No.1 did not prefer filing a Written Statement and hence the matter has proceeded without his Written Statement by order dated 8.11.2011. Shri Karpe, therefore, submits that defendant No.2 / respondent No.2 herein, is the contesting defendant.

5. It is undisputed that the petitioner has preferred application Exhibit 89 before the trial Court on 27.4.2015. The matter was in the midst of final arguments before the trial Court. The petitioner has indicated through the application such immovable properties which are situated at Jaunpur and which have been inadvertently left out from the suit. It was, therefore, prayed before the trial Court that the suit would suffer an irreparable damage for not including these properties, especially when the suit has been filed for partition and separate possession. It was, therefore, submitted that the amendment be permitted.

6. The petitioner assails the impugned order on the ground that the trial Court should have allowed the application keeping in view that the suit would virtually stand rejected if all the properties are not included. Shri Karpe, therefore, submits that notwithstanding the stage in the matter, it would not have been too late to permit the plaintiff to include the properties so as to enable the trial Court to decide the suit in accordance with law. He submits that the rejection of Exhibit 89 has virtually rendered the plaintiff remediless.

7. Shri Badakh, learned Advocate appearing on behalf of the second respondent / original defendant No.2 has vehemently opposed this petition He submits that this petition cannot be entertained unless the petitioner establishes perversity in the findings of the trial Court.

8. He has pointed out material aspects from the case, which are as follows:-

(a) The suit preferred by the petitioner is based on the contention that ancestral properties are involved.

(b) Defendant No.2 filed his written statement on 11.10.2011, clearly making out a case of non-inclusion of certain properties.

(c) Certain documents were also placed on record and the petitioner was made aware of these objections through the written statement and the documents.

(d) Issues had been cast long ago, whereby the petitioner got a clear idea that he has failed to include all the properties in the suit.

(e) The petitioner was confronted on non-inclusion of properties in his cross-examination.

(f) After the final arguments had commenced, by way of an after thought, the petitioner has moved Exhibit 89 in order to rescue his suit from being dismissed, apparently, on account of non-inclusion of all the properties.

(g) In response to application Exhibit 89, respondent No.2, has filed his detailed Say, dated 13.4.2015, highlighting the above factors and also indicating to the trial Court that some properties are self acquired properties of the second defendant.

(h) The petition is devoid of merits and should be dismissed.

9. Shri Badakh has relied upon two judgments, delivered by this Court in the matter of Dnyand