Arun Kumar Jha, J.—The record has been taken up on mentioning being made on behalf of the respondent.

2. Heard learned counsel for the parties and I intend to dispose of the petition at the stage of admission itself.

3. Learned counsel for the petitioner submits that the petitioner is aggrieved by the order dated 01.02.2024 passed by learned Additional District Judge-2, Jamui in Probate Case No. 29 of 2022, whereby and whereunder the learned Additional District Judge has allowed the petition dated 18.12.2023 filed by the respondent under Order 6 Rule 17 of the Code of Civil Procedure (in short ‘the Code’) for addition of certain facts in paragraph 8 of the probate petition.

Learned counsel further submits that the impugned order is not sustainable in view of the fact that the said amendment has been allowed after commencement of trial as three witnesses have been examined in the matter. After coming to know about the status of the petitioner, the respondent/probate petitioner moved an application for amendment in order to fill up the gap in his case. Learned counsel has relied upon a decision of Hon’ble Supreme Court in the case of Vidyabai & Ors. vs. Padmalatha & Ors. passed in Civil Appeal No. 7251 of 2008, wherein the Hon’ble Supreme Court has held that the amendment should not be allowed once trial has commenced. Learned counsel further submits that, moreover, the amendment is not relevant to the facts in the probate case and even when the amendment has been allowed, the petitioner was not given any opportunity to file additional/amended written statement. Thus, the learned counsel submits that the order allowing the amendment needs to be set aside.

4. Learned counsel appearing on behalf of the respondent vehemently contends that there is no infirmity in the impugned order and the same does not need any interference. Learned counsel further submits that paragraph 8 of the probate petition shows that the amendment sought is only for clarifying the fact mentioned in paragraph 8 and the need arose as the vendors of the petitioner filed written statement making some averment prejudicial to the case of the petitioner. Learned counsel further points out that the probate petitioner has already mentioned as the present petitioner being issueless and her husband marrying for the second time. However, the fact about the present petitioner still residing in her matrimonial home was sought to be brought by way of amendment and this fact gests supported from the affidavit of the petitioner as well her Aadhar card. These documents show the present petitioner has been continuously residing in in her matrimonial home even after second marriage of her husband. Learned counsel further submits that need for amendment arose as the present petitioner continued selling the property which is also part of the property mentioned in the Will for which probate case has been filed. Even the second para of the amendment only clarify this fact that the present petitioner received certain property from her father. In support of his case, learned counsel referred to a decision of Hon’ble Supreme Court in the case of State of Bihar and Others vs. Modern Tent House and Another, reported in (2017)8 SCC 567. Para 8 of the judgment reads as under:—

“We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defence already taken or will result in withdrawing any kind of admission, if made in the written statement’ fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence