Sunil Dutta Mishra, J. – Heard learned counsel for the parties.

2. This Civil Misc. Application has been filed under Article 227 of the Constitution of India against the order dated 21.02.2017 passed by the learned Civil Judge (Senior Division)- 3rd, Patna by which the amendment petition filed by the plaintiffs under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) for amendment of the plaint in Title Suit No. 211 of 2007 has been allowed.

3. The brief facts of the case are that the plaintiff no. 1 and defendants are full brothers and plaintiff no. 2 is the sisterin- law of plaintiff no. 1 and they are member of the joint Hindu Mitakshra family living in jointness but separate in mess and business. The plaintiffs filed a Title Partition Suit No. 211 of 2007 for partition of family property on 08.10.2007. The defendant Nos. 1 and 2 transferred their half share in plaint Schedule-I property to the petitioner who was impleaded as defendant no. 3 in the partition suit on his application for impleadment. The petitioner filed his written statement on 07.01.2012 and claimed that the suit property is not joint family property of the plaintiffs and defendant Nos. 1 and 2. In fact, after purchase of the plot no. 269, the plaintiffs and defendant Nos. 1 and 2 amicably partitioned the said plot and by the said partition, the eastern 10 dhur was allotted to defendant Nos. 1 and 2, who sold the said plot to the petitioner for valuable consideration and put him in possession of the same and he is in continuous, open, peaceful and uninterrupted possession over the suit land. The petitioner has no concern with the other suit land. The defendant Nos. 1 and 2 not filed their written statement in the suit. The issues were framed in the suit and the plaintiff evidence was closed on 31.10.2013. After deposition of all the witnesses, the evidence on behalf of defendants was also closed on 29.09.2016.

4. It is stated that on 07.05.2013, during the deposition of their witnesses, plaintiffs filed a petition under Order 6 Rule 17 of the CPC for amendment of the plaint which was never pressed despite given ample opportunity and the same was dismissed on 08.10.2015. The plaintiffs again filed an amendment petition under Order 6 Rule 17 read with Section 151 of the CPC on 20.06.2016, which was opposed by the defendant-petitioner. However, the same was allowed by the learned trial Court by the impugned order dated 21.02.2017.

5. Learned counsel for the petitioner has submitted that the learned trial Court failed to appreciate that the amendment application has been filed seeking amendment of pleadings at belated stage without satisfying the Court that in spite of due diligence, they could not place the same before the commencement of the trial. The amendment application was filed after the commencement of trial and it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso appended in Rule 17. He has further submitted that the earlier application for amendment of pleading was dismissed due to the reason of not pressing the said application by the plaintiffs. However, similar application has been filed thereafter which was liable to be rejected. However, the learned trial court allowed the said amendment application with cost. The learned trial Court failed to realize that by allowing the amendment application, the suit is to go on and de novo trial will commence causing prejudice to the petitioner. Lastly, he has submitted that the amendment application filed by the plaintiffs is also barred by law of limitation and the impugned order is liable to be set aside by this Court in its supervisory jurisdiction.

6. Learned counsel for the petitioner has submitted that evidence must be in consonance with pleading and on this point he has relied on a decision of Orissa High Court in the case of Khali & Ors. vs. Sadhaba Bewa & Ors. reported in AIR 1967 Orissa 58 wherein in paragraph no. 2 it is