JUDGMENT :

1. In this application as filed under Article 227 of the Constitution of India, the order No. 69 dated 31.08.2018 as passed by the learned Civil Judge, (Senior Division) 2nd Court, Malda in Partition Suit No. 243 of 2008 is the subject matter of the challenge.

2. By the impugned order, learned trial court in a suit for permanent injunction and for partition has been pleased to allow the plaintiffs’ amendment petition thereby permitted the plaintiffs to include certain averments in the plaint as well as the prayer for recovery of possession in the prayer portion of the said plaint by removing the prayer for permanent injunction.

3. The defendants felt aggrieved and thus preferred this instant revisional application.

4. In support of the present revisional application, learned advocate for the defendants/petitioners at the very outset draws attention of this Court to the photocopy of the plaint as filed in Partition Suit No. 243 of 2008 before the learned trial court. Attention of this Court is also drawn to the order dated 23.09.2015 as passed by this Hon’ble Court in FA 17 of 2014, the petition for amendment as well as the written objection as filed by the defendants/revisionists before the trial court.

5. It is contended that in FA 17 of 2014, this Hon’ble Court while disposing of the said appeal allowed the present plaintiffs to take steps for setting aside the abatement which occurred on account of death of defendant no. 9 and thus set aside the impugned judgment as passed in the said suit. It is further contended on behalf of the revisionists/defendants that after setting aside the abatement, the plaintiffs had come forward with an application for amendment of plaint which practically tantamounts to changing of nature and character of the said suit which is not permissible in the eye of law. It is further contended that since the said petition for amendment has been filed at a very belated stage, learned trial court ought not to have allowed such amendment application in view of the provisions of the proviso of Order 6 Rule 17 of the Code of Civil Procedure.

6. In support of his contention, learned advocate for the defendants/revisionists places her reliance upon the reported decision of Nemai Chandra Basuri Vs. Chandra Mohan Ghosh, reported in 2016 (2) CHN (CAL) 354.

7. It is thus contended that the present revisional application be allowed thereby rejecting the prayer for amendment as made by the plaintiffs before the learned trial court. While opposing the contention of the learned advocate for the revisionists/defendants, learned advocate for the plaintiffs/opposite parties submits before this Court that on account of subsequent events, the proposed amendment had become necessary which is why a prayer was made for amendment of the plaint.

8. It is further argued that the proposition of law as enunciated in the case of Motilal Saha Vs. Narasingha Saha, reported in 2012 (5) CHN (CAL) 11 is squarely applicable in this case.

9. This Court has perused the entire materials as placed before this Court including the impugned order. This Court has given its due consideration over the submissions of the learned advocate for both sides. On perusal of the amended plaint as filed before the learned trial court, it reveals to this Court that originally the said Partition Suit No. 243 of 2008 was filed with prayers for declaration, permanent injunction and for partition by way of preliminary decree followed by a final decree and for other ancillary reliefs.

10. Admittedly, the said suit was dismissed by a judgment and decree dated September 20, 2013. However, the said judgment and decree of dismissal was set aside by an order dated 23.09.2015 as passed by this Hon’ble Court in FA 17 of 2014 and the matter was sent back to the learned trial court with some direction on account of setting aside of the abatement in view of the death of defendant no. 9 during the pendency of the said suit. It is admitted position that after such remand,