Arun Kumar Jha, J. – The petitioners have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 24.01.2018 passed by the learned Sub. Judge-IV, Hajipur in Title Suit No. 253 of 2001, whereby and whereunder the petition dated 16.08.2017 filed by the plaintiff/respondent no. 1 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) has been allowed.

2. It emerges from the record that the plaintiff/respondent no. 1 filed a partition suit bearing Title Suit No. 253 of 2001 in the Court of learned Sub. Judge-I, Hajipur seeking 1/7th share in Schedule-I of the plaint after partition of the suit property and also for a direction to defendants-2nd set, petitioners herein, to execute the sale deed in favour of the plaintiff/respondent no. 1 for the land of Schedule-2 along with house mentioned in Schedule-2 property of the plaint with alternative prayer that if the defendants-2nd set/petitioners failed to executed the sale-deed, the same might be executed through the process of the Court.

The defendants-2nd set/petitioners appeared in the suit after notice and filed their joint written statement controverting the case of the plaintiff. It has also been pointed out that another partition suit bearing No. 102 of 2000 was filed by respondent no. 4 against the plaintiff/respondent no. 1 and other six brothers for partition of Schedule-I property wherein the present plaintiff-Kedar Nath Chaudhary was transposed as plaintiff and said suit bearing PS No. 102 of 2000 was decreed ex-parte vide judgment and decree dated 23.01.2003 and 05.02.2003, respectively and the plaintiff-Kedar Nath Chaudhary was held entitled for 1/7 share in the suit property. Thereafter, the plaintiff/respondent no.1 filed petition for preparation of final decree and the present petitioners were added as party defendants vide order dated 03.05.2003 in F.D. Case No. 102 of 2000. It further transpires that during pendency of the present suit bearing Title Suit No. 253 of 2001, the defendant-1st set/respondent nos. 2 to 6 filed a petition under Section 11 of the Code for staying the suit proceeding during pendency of the final decree proceeding of PS No. 102 of 2000. At the same time, Misc. Case No. 09 of 2003 was filed by defendant-2nd set/petitioners for setting aside the ex-parte decree proceeding of P.S. No. 102 of 2000 and to allow them to contest the suit. The learned trial court after hearing the parties, vide order dated 03.07.2004, stayed the further proceeding of Title Suit No. 253 of 2001 till disposal of Misc. Case No. 09 of 2003. It further appears that during pendency of Title Suit No. 253 of 2001, original defendant no. 2, namely, Paras Nath Chaudhary died issue-less and the plaintiff/respondent no.1 filed petition dated 18.10.2011 for expunging the name of defendant no. 2 which was ultimately allowed vide order dated 15.06.2012 and the name of defendant no. 2 was deleted from the plaint. Meanwhile, Misc. Case No. 09 of 2003 was dismissed as withdrawn and the learned trial court vide order dated 11.04.2017 vacated its order dated 03.07.2004 and started the proceedings in Title Suit No. 253 of 2001 for further haring and on 30.05.2017, the issues have been framed in the suit. Thereafter, the plaintiff/respondent no. 1 filed petition dated 16.08.2017 under Order 6 Rule 17 of the Code seeking amendment in the plaint stating therein, inter alia, that since the brother of the plaintiff/respondent no. 1 died issue-less, therefore, share of the plaintiff would change to 1/6th in place of 1/7th. Thus, the plaintiff/respondent no.1 sought amendment in second line of paragraph-10 Page-10, 2nd line of Para-13 and 1st line of Para-14 of the plaint by striking of 1/7th and for inserting 1/6th in its place. The petitioners/defendant-2nd set filed rejoinder opposing the amendment petition. The learned trial court vide impugned order dated 24.01.2018 allowed the amendment petition