JUDGMENT :

This is an original petition filed under Article 227 of the Constitution of India by the plaintiff in O.S.No.337 of 2015 aggrieved by the order in I.A.No.487 of 2021 dated 04.01.2022 in the above case. Respondents herein are the defendants in the above suit.

2. The questions emerge for consideration in this matter are as under;

(1) Can a party to a civil suit seek amendments to their pleadings without narrating and justifying sufficient foundation to get the amendment allowed?

(2) Is it permissible to allow amendments without justifying the same in the affidavit in support of the amendment petition?

3. Admittedly, after commencement of trial, the plaintiff herein filed I.A.No.487 of 2021 and sought for three amendments to be carried out in the plaint. As per the order impugned, the learned Munsiff allowed amendments 1 and 2, as sought for, while disallowing the amendment sought for as item No.3 in the amendment petition.

4. It is submitted by the learned counsel for the petitioner that, initially, the property of the defendants excluding two cents on the eastern side was scheduled and this mistake was not noticed till commencement of trial. On getting notice of the same, the petitioner filed amendment petition to incorporate the said omission by scheduling the property of the defendants as 3.42 ares instead of 1.65 ares originally scheduled.

5. According to the learned counsel for the petitioner, if the amendment sought for is not allowed, the purpose of the suit itself would be defeated. However, when the learned counsel for the petitioner was asked to justify the necessity of the third amendment with reference to the averments in the affidavit in support of the amendment petition, the learned counsel failed to point out substantive or even evasive averments in the affidavit in support of the amendment petition or the foundation for the amendment as sought for.

6. It is argued by the learned counsel for the respondents that the amendment sought for, after commencement of trial, shall be subject to the proviso to Order 6 Rule 17, despite that the court below allowed prayer Nos.1 and 2 in the amendment, since there was foundation for the same in the original plaint itself and in the affidavit in support of the amendment petition. He submitted further that, but, nothing stated in the affidavit in support of the amendment petition justifying the amendment of schedule of the defendants property in any manner. According to the learned counsel, for this reason alone, the amendment sought for could not be allowed and the court below rightly done so. He submitted further that the dispute in between the plaintiff and defendants in the matter of fixation of boundary of the properties, which were originally obtained by a partition deed and subsequently, exchanged by executing respective exchange deeds between them, is the subject matter of adjudication in the suit.

7. According to the learned counsel for the respondents, the extent of property covered by the exchange deed, for which, the boundary, sought to be fixed, is only to an extent of 1.65 ares which was originally scheduled in the plaint and now the attempt of the plaintiff is to incorporate two cents more property lying on the eastern side of 1.65 ares of property, which is not a subject matter of the exchange deed. He also submitted that even in the plaint or in the affidavit in support of the petition, no one could found any foundation to substantiate the amendment and thus the amendment sought for as item No.3 is without any base and accordingly, the court below rightly disowned the same. He also submitted that, accepting the order impugned, the petitioner carried out two amendments allowed, on 24.02.2022, and the defendants filed additional written statement also in view of the incorporation of the said amendment.

8. It is submitted by the learned counsel for the petitioner that the apprehension of the plaintiff/petitioner should be given emphasis and in the interest of jus