JUDGMENT :

BISWAROOP CHOWDHURY, J.

1. The petitioner before this Court is a plaintiff in a suit for partition, and is aggrieved by the Order dated 16.03.2019 passed by Learned Civil Judge (Senior Division) 1st Court Contai in Title Suit No. 95 of 2015 allowing prayer of opposite party no. 1/Defendant in application under Order 6 Rule 17 of the Code of Civil Procedure.

2. The case of the opposite party no. 1 before the Learned Trial Court in the application under Order 6 Rule 17 CPC may be summed up thus.

3. The defendant no. 1/opposite party no. 1 contended in the said application that the plaintiff/petitioner created obstruction in the common passage for which complaint was lodged before Ram Nagar Police station and proceedings under section 133 Cr.P.C. was instituted before S.D.E.M. at Contai. The opposite party no. 1 further contended that on 01/10/2015 the plaintiff along with some antisocials installed a gate on the common passage as a result of which free-movement of the opposite party no. 1 is obstructed which is causing hardship to the said defendant.

4. The plaintiff/petitioner contested the petition by filing written objection.

5. By order dated 16/03/2019 the Learned Court below was pleased to allow the petition of the opposite party no. 1, under Order 6 Rule -17 of the Code of Civil Procedure for amendment of written statement and permission to file counter claim.

6. The petitioner/plaintiff being aggrieved by the order dated 16/03/2019 has come up with the instant Revisional Application.

7. It is contended by the petitioner that the learned court below in exercise of his jurisdiction acted illegally and with material irregularity by allegedly holding that ‘it is necessary to decide whether any Ejmal Path-way is existing in the suit plot’ i.e. within the Nursing Home area, covered with surrounded pucca brick built high boundary wall which is very much absurd and non application of judicious mind. It is further contended that the learned court below in exercise of his jurisdiction acted illegally and with material irregularity by allegedly finding ‘it can be stated that the proposed amendment of the defendant is necessary for proper adjudication of the suit. As per the amendment application the cause of action arose on 1.10.2015 and the application praying for amendment was filed on 9.08.2017 and 8.2.2018 which were not pressed on technical ground and the present petition is filed on 04.08.2018 which is within three years from the date of occurrence of cause of action’ it is very much biased and not at all impartial finding. It is also contended that the Learned Trial Court failed to appreciate the exact state of affairs and the involved points of law therein and thereby failed to pass judicious order for the interest of justice.

8. Pursuant to the filing of this application notice was issued upon the opposite party no. 1/plaintiff. The service of notice upon other opposite parties were dispensed with.

9. Heard Learned Advocate for the petitioner/plaintiff and Learned Advocate for the opposite party no. 1/defendant no. 1. Perused the petition filed and materials on record.

10. Learned Advocate for the Petitioner/Plaintiff submits that the Learned Trial Judge failed to apply his mind to the facts of the case when he went on to allow, the application for amendment which includes prayer for filing counterclaim made by the opposite party no. 1. Learned Advocate further submits that the order passed by Learned Trial Judge is contrary to the provision contained in Rule 6A of Order 8 of the Code of Civil Procedure. Learned Advocate also submits that so far mere amendment is concerned he has no objection but so far counter claim is concerned it should be filed in accordance with Rule 6A of Order 8 of the Code of Civil Procedure. Learned Advocate submits that the opposite party no. 1 is not without remedy as he has liberty to file a separate suit. It is submitted that the order passed by the Learned Trial Court cannot be sustained and