DINESH MEHTA, J.

1. The present writ petition has been preferred laying challenge to order dated 16.8.2018 passed by the Judge, Garm Nayaylaya, Bikaner (hereinafter referred to as the ‘trial court’) whereby he has rejected the application under Order VI Rule 17 of the Code of Civil Procedure filed by the petitioner.

2. Succinctly stated the facts leading the petitioner to approach this Court are that the plaintiff-petitioner herein had filed a suit for permanent and mandatory injunction against the defendant, inter alia, indicating that she being the owner is having possession of the disputed “Makan” and “Bada”. Asserting her status as stated above, she prayed for an injunction qua Municipality, Deshnok and private defendants that they be restrained from interfering in her possession over the suit property.

3. In the suit aforesaid, which was filed on 24.11.2011, the defendants filed their written statement way back on 3.1.2012 and refuted the assertion of ownership and possession made by the plaintiff. The defendants asserted that neither the plaintiff nor her alleged predecessor even had title of the suit premises and on the contrary, they maintained that the disputed land belongs to municipality. The defendants alleged that the plaintiff has encroached upon the municipal land and raised construction illegally. Based on the pleadings of the rival parties, on 16.09.2014 the trial court framed the issues and, thereafter, proceeded to amend the same on 4.6.2016. Since then the plaintiff was granted at least 15 opportunities to lead evidence. Having failed in her attempts to protract the proceedings any further, on 06.07.2018, the petitioner filed an application for amending the plaint captioned as an application under Order VI Rule 17 of the Code of Civil Procedure.

4. By way of the said application, the petitioner sought a leave to amend her plaint and tried to incorporate para No. 6(a) and prayer clause 1(a) asserting her title over the land and sought a declaration that she be declared as the sole owner of the contentious property.

5. The defendants, opposed aforesaid application seeking amendment and contended that the application for amendment was not only frivolous and vexatious, but the same was an attempt to abuse the process of law. The defendants also reisted the application by contending that if the proposed amendment is allowed, the same would change the nature of the suit and the present suit would be converted into a suit for declaration. Such suit for declaration is impermissible in law for want of requisite notice as contemplated under Section 304 of the Rajasthan Municipalities Act, 2009, contended the defendants. It was also submitted that the plaintiff was required to pay court fee based on the market value of the subject property, if she wants a declaration of her title.

6. The learned trial court heard the parties at length and rejected the application dated 6.7.2018 filed by the petitioner vide its order dated 16.8.2018. Learned court below observed that soon after filing of the written statement, by the defendant on 3.1.2012, the plaintiff had sought amendment in plaint by way of an application under Order VI Rule 17 of the Code of Civil Procedure, which had been rejected earlier. The trial court has held that the amendment in question cannot be permitted as the trial had commenced, while also highlighting that if the amendment as prayed in para No. 5 and 6 of the application is allowed, the present suit would be converted into a suit for declaration, for which payment of requisite court fees based on the market value of the property was essential.

7. Assailing the order dated 16.8.2018, Mr. Surendra Thanvi, learned counsel for the petitioner submitted that the court below has erred in rejecting the petitioner's amendment application. He submitted that the learned trial court has non-suited the petitioner, inter alia, observing that the trial of the suit has commenced. In this regard, he contended that