JUDGMENT :

Heard Mr. B. Pushilal, learned counsel for the petitioner. Also heard Ms. S.S. Zia, learned counsel for the respondent.

2. Present petition is filed assailing the order dated 27.7.2022 passed by learned Munsiff No.2, Sonitpur, Tezpur in Misc(J) Case No. 55/2022 arising out of T. S. No. 32/2011.

3. The aforesaid Misc. Case was registered on an application preferred by the plaintiffs in Title Suit No. 32/2011 under Order 6 Rule 17 of the CPC to amend the plaint. The petitioner/plaintiff projected that during the pendency of the suit the plaintiff petitioners were evicted from the Schedule-B property and accordingly, sought for amendment to the following effect:

(i) That in page No. 3 in the right column line of 1 after the word “declaration” a new phrase “recovery of possession, cancelation of mutation order and kheraji patta and partition” needs to be inserted by way of amendment.

(ii) That in page No. 7 after paragraph 13 new paragraphs 13 A and 13 B needs to be inserted as under:

“13 A That on 5.8.2018 during pendency of the suit in a most illegal manner Opp. Parties/ Defendants with the help of their men, servants, agents etc., forcibly took possession of the Schedule B land mentioned in the plaint.”

“13 B. That since the Defendants have taken forcible possession of the schedule B land as such the Hon’ble Court needs to restrain and prohibit the Defendants, their men, agents etc., from undertaking any types of constructions over the Schedule B land.”

(iii) In page No. 7 in paragraph 14 after the words Proforma Defendants a new sentence “recovery of possession, cancelation of mutation order and Kheraji patta and partition” needs to be inserted by way of amendment.

(iv) That in page No. 8 in prayer section the following amendments are required: In prayer No. I) after the Schedule B land new sentence “ recovery of possession, cancelation of mutation order and kheraji patta and partition” needs to be inserted by way of amendment.”

4. The respondents herein objected to such amendment basically on the ground that the amendment sought to be made is nothing but an afterthought and that the amendments are sought at a very belated stage and at the stage of cross examination of PWs. It is the further objection that, the foundation that the petitioners are not in possession over the schedule-B is already available in the plaint as well as in the written statement filed by the defendant and admittedly the PW 1 during the cross examination in the year 2018. It was further re affirmed that the plaintiffs are not in possession over the suit land and thereafter the plaintiffs have become wiser and filed the amendment petition in the year 2021. Therefore such amendment has rightly been rejected by the learned Court below.

5. After hearing the parties the learned court below has rejected the prayer of amendment basically on the following counts:

(i) It appeared to the learned trial court that the proposed amendment is not very much vital or highly required for proper adjudication of the main suit as the case was at the stage of PWs .

(ii) The plaintiffs have failed to show that they are restrained to file the amendment petition because of such exceptional circumstances.

(iii) Being an old pending case the prayer of amendment at the stage of cross examination of PWs cannot be allowed as the same will bring prejudic to the case of the opposite parties.

6. Mr. Pushilal, learned counsel for the petitioners assailing the aforesaid order submits

(i) The cause of action for making the prayer of recovery of possession has arisen during the pendency of the suit i.e. on 7.8.2018 and only the nature of relief is sought to be changed in the changed circumstances inasmuch as there is already a prayer for declaration of right, title and interest.

(ii) As the petitioners were allegedly dispossessed during the pendency of suit, therefore it has become necessary to amend the plaint as prayed by the plaintiffs and the same will not change the nature and character o