1. Heard Mr. B.N. Majumder, learned counsel, appearing for the petitioner. Also heard Mr. S. Datta, learned, appearing for the respondent.

2. The grievance of the petitioner is that they filed a petition seeking amendment of the plaint before the learned Civil Judge (Senior Division), Court No. 1, West Tripura, Agartala in T.S. 91 of 2010 for incorporating an additional paragraph as paragraph 20A and additional prayer as (iii)(a) to the relief. Schedule of the proposed amendment is usefully reproduced:

"Schedule of the amendment

(i) That, after paragraph 20 at p.8 of the plaint, a paragraph containing the following statement may be inserted:

"20A. Since the defendant has entered into an agreement for the sale of the suit land in favour of the plaintiff on 25th July, 2010 in presence of the other legal heirs, namely, Smt. Sibani Adhikari, Smt. Bhabani Basak and Smt. Seema Deb, all three are the sisters of the plaintiff and the defendant, and had received Rs. 25,000 as an advance for such agreement and since he has denied to sale the land in favour of the plaintiff, a decree in this regard is required to be passed directing the defendant to execute the sale deed, in respect of the suit land, on receipt of the rest of the sale consideration amounting to Rs.9,75,000 and in case of refusal of the defendant to do so, a decree directing the sub-registrar Sadar, to execute the sale deed in favour of the plaintiff through this hon'ble court."

(ii) At p. 9, in the prayer portion of the plaint, the following prayer may be added:

"(iii)(A) Pass a decree declaring that the plaintiff is entitled to get a decree of specific performance of contract against the defendant for sale of the suit land on receipt of the rest of the sale consideration, i.e., Rs. 9,75,000 and execute a sale deed in favour of the plaintiff and in case of failure to execute the same, your honour may be pleased to direct the sub-registrar Sadar, to execute the sale deed in respect of the suit land, under the seal and signature of this hon'ble court."

3. On the face of objection as raised by the defendant, learned trial court rejected that prayer by the impugned order dated 17.8.2011 on the solitary ground that if the amendment is allowed to be carried out that would change the character of the suit.

4. Mr. S. Datta, learned counsel, appearing for the respondent filed objection to the prayer of the petitioner for interference with the impugned order and submitted that there is legal bar as provided in proviso to rule 17 of order 6 of the CPC. In support of the said contention, he submitted that after one year of filing the written statement, the petition for amendment had been filed and the trial having already commenced/such application seeking amendment had rightly been rejected by the trial court. Learned counsel for the respondent relied the decision reported in Mahadev Govind Charge and Ors. v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, AIR 2011 SCW 3220 wherein Apex Court held that -

"The concept of ‘hearing by the court', in fact, has common application both under Civil and Criminal Jurisprudence. Even in a criminal matter the hearing of the case is said to be commended by the court only when it applies its mind to frame a charge, etc. Similarly, under civil law also it is only when the court actually applies its mind to averments made by party/parties, it can be considered as hearing of the case. This court in the case of Siraj Ahmad Siddiqui v. Prem Nath Kapoor (1993) 4 SCC 406: AIR 1993 SC 2525: AIR 1993 SCW3273) while dealing with the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, referring to the concept of first hearing, held as under :

"13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purp

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