Amendments to pleadings must not change the fundamental nature of the suit, as established under Order 6 Rule 17 of the Civil Procedure Code.

ORDER

1. Instant writ petition has been filed by the petitioner challenging the impugned orders dated 14.12.2017 passed by the Court of Civil Judge cum Judicial Magistrate, Chomu District Jaipur, whereby the applications filed by the plaintiff-petitioner under Order 6 Rule 17 of C.P.C. seeking an amendment in the plaint as also in application for T.I. to amend the pleadings and to correct the size of suit property, had been dismissed.

2. Facts of the present case, in nut-shell, are that the plaintiff-petitioner had instituted a civil suit for permanent and mandatory injunction, alongwith application for temporary injunction. The plaintiff-petitioner filed applications under Order 6 Rule 17 read with Section 151 of C.P.C. in civil suit to amend the plaint as also in T.I. Application to correct size of the plot, which came to be rejected vide impugned orders dated 14.12.2017. Hence, this writ petition before this Court.

3. Learned counsel appearing for the plaintiff-petitioner has submitted that the learned trial Court has committed illegality in dismissing both the applications filed by the plaintiff-petitioner. Counsel has further submitted that the plaintiff-petitioner had filed an application under Order 6 Rule 17 of C.P.C. on the basis of copy of the sale-deed dated 12.03.1970, which was not made available to him at the time of filing of the plaint i.e. on 13.04.2015. However, the same was received by him on 25.05.2015. So, thereafter, in the rejoinder filed on 28.05.2015, a reference of the sale-deed has also been given. Counsel has also submitted that the plaintiff-petitioner has filed the present suit, asserting his title by making an averment that the suit property was purchased by his father, namely Late Shri Gyarsi Lal. The date of sale-deed, through which father purchased the suit property, was not given in the plaint. However, as soon as the plaintiff-petitioner got the copy of the sale-deed dated 12.03.1970, prior to filing of the rejoinder, the plaintiff-petitioner had mentioned about his father's sale-deed dated 12.03.1970 in the rejoinder dated 28.05.2015, which was taken on record vide order dated 03.02.2016.

4. Counsel appearing for the petitioner has contended that in case, the plaintiff-petitioner is permitted to add the reference of the sale-deed dated 12.03.1970 in the plaint, there would be no change in the basic nature of the suit, as plaintiff-petitioner has already averred in the plaint that the suit property was purchased by his father through a registered sale-deed. Counsel has further contended that so far as prayer for amendment in the plaint as well as application for temporary injunction, in relation to the correction of size of the suit property is concerned, at the time of filing of the plaint, copy of sale-deed dated12.03.1970 was not made available to the plaintiff-petitioner. When copy of sale-deed dated 12.03.1970 received to the plaintiff, he came to know about the actual size of the said property. Therefore, correction in the measurement of the suit property is necessary and is required to be made. Counsel has also contended that the plaintiff's evidence has not yet started, and the proposed amendment in the plaint just to correct the measurement of the suit property, can be allowed, which will cause no prejudice to the defendants-respondents. Lastly, counsel has prayed that the impugned orders dated 14.12.2017 in Civil Suit and T.I. Application may kindly be set aside and both the applications of the plaintiff-petitioner seeking an amendment in the plaint and in application for T.I. to amend the pleadings and to correct the size of the suit property, be allowed.

5. During the course of arguments, learned counsel appearing for the plaintiff-petitioner, has placed reliance upon the case of Surender Kumar Sharma Vs. Makhan Singh, reported in (2009) 10 S.C.C. 626 and in the case of Sajjan Kumar Vs. Ram Kishan, reported in (2005) 13 S.C.C. 89.

6. Per contra, learned counsel appearing for the defend