Point of Law: When amendment is sought to seek to withdraw any clear admission made by the parties is required to be rejected when it results in withdrawal of a right conferred upon the other side by virtue of such pleading originally made.

JUDGMENT :

1. Though notices were duly served upon the respondent Nos. 3, 4, 5 and 6 and they were represented by their engaged counsel, however, none represented them, when the matter was called on 26.04.2023 and 15.05.2023. This Court in absence of the learned counsel for aforesaid respondents adjourned the matter in the interest of justice on 26.04.2023 and fixed it on 15.05.2023. When on 15.05.2023, none represented the respondent Nos. 3, 4, 5 and 6, this Court again adjourned the case in the interest of justice providing that if none appears for the respondent Nos. 3, 4, 5 and 6, on the next date fixed, the matter shall be taken up for final disposal on the materials available on record.

2. When the matter was called today, none appears for the respondent Nos. 3, 4, 5 and 5 and accordingly, heard Mr. A. Ikbal, learned counsel for the petitioner.

3. The present revision petition is filed assailing an order dated 25.07.2022 passed by the learned Munsiff No. 1, Kokrajhar in Misc. (J) case No. 6/2022 arising out of Title Suit No. 6/2016 (Old) / Title Suit No. 40/2021 (New).

4. The present petitioner as plaintiff instituted the aforesaid suit before the learned Court of Civil Judge at Kokrajhar for declaration of right, title and interest, recovery of possession and permanent injunction against the present respondent Nos. 3, 4, 5 and 6. But due to the recent amendment of the Bengal, Agra and Assam Civil Courts Act, 1887, the aforesaid title suit was transferred to the learned Court of Munsiff No. 1, Kokrajhar and renumbered as Title Suit No. 40/2021 (New).

5. On receipt of summons, the respondent Nos. 3, 4, 5 and 6 appeared before the learned trial Court and filed their written statement. Therefore, issues were framed and trial commenced. After filing evidence on affidavit of PW-1 and PW-2, the plaintiff filed the Misc. (J) Case No. 6/2022 under the provision of Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of certain pleading made in the plaint which shall be dealt at the later part of this order. The said PW1 and PW-2 were cross examined.

6. The respondent / defendant Nos. 1 to 6 preferred an objection to the aforesaid application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908.

7. After hearing the parties, the learned trial Court below rejected the application on the ground that the plaintiff was not diligent at the time of filing of the suit inasmuch as he did not go through the relevant documents before filing of the suit which he should do. It was also concluded that if the amendment is allowed, the structure of the suit will be changed which will be prejudice to the defendants.

8. Mr. Ikbal, learned counsel for the petitioner referring to the paragraph 2 of the plaint submits that at para 2 of the plaint, a specific statement was made that one Mohendra Chandra Saha, the father of the proforma defendant and one Kalidas Saha, the father of the main defendant Nos. 1 and 2 of the suit were two brother and during their life time, they both jointly held the possession of a plot of land measuring 3 Kathas 16 Lechas covered by Dag No. 110/224 under Periodic Khiraj Patta No. 106/141 and Khatian No. 132 situated at the Village-Khanabari, Bagribari Araiani Part-II under P.S. & Revenue Circle-Bagribari and it was also pleaded that during their life time, both jointly sold 1 Katha 1 Lecha out of their said total land to Gopal Ch. Saha and his brother Gobinda Ch. Saha and after sale, the said 1 Katha 1 Lechas of land was separated from the said Patta No. and opened a new Patta No. 231 in 1987 and accordingly the record was corrected in 1994 in the name of Gopal Ch. Saha and Gobinda Ch. Saha. After such sale, the land remained only 2 Kathas 15 Lechas and which stood in the name of two brothers Mahendra Ch. Saha and Kalidas Saha and they both were the Khatiandars/Pattadars of the said land.

9. Subsequently, by way of an amendment application, following amendments in a nutshell were sought to be introduce