Deepak Gupta, J:- This Revision Petition is directed against the order of the Sub Judge 1st Class, Nalagarh dated 4.10.2001 passed in Civil Suit No.414/1 of 1998 whereby he has rejected the application filed by the petitioners herein for amendment of the replication-cum-written statement to their counter claim.

2. This case has rather unusual facts. The petitioners herein filed a suit before the learned trial Court. This suit was filed under Order 1 Rule 8 CPC for the benefit of the general public of village Jattimajra, Pargana Dharampur, Tehsil Nalagarh, District Solan.

3. According to the petitioners, a public well had been constructed in khasra No.76 in the said village. The case set up was that this well had been constructed by the villagers and that the father of the plaintiffs Karam Chand had six shares in the said land. It was averred that the well was constructed 70 years back by the general public for its use. According to the petitioners the respondents had installed a pump machine inside the well and had started irrigating their adjoining land by pumping out the water from the well. This has affected availability of water from the well to the public and therefore the suit.

4. The respondents filed written statement and their stand was that the plaintiffs and the other villagers have no connection with the well in question. According to the respondents the well had been constructed by their father Thakaria some time in the year 1941 by spending more than Rs. 500/- in silver coins. It was further submitted that this well was constructed in the land which previously bore khasra No.74 and was now khasra No.76. According to the defendants the entries showing Karam Chand to be part owner of his khasra number were manipulated and illegal.

5. The defendants also filed a counter claim and prayed for a decree of permanent prohibitory injunction restraining the plaintiffs and other villagers from taking water from the well situate in khasra No.76.

6. Interestingly, this counter claim has neither been separately filed nor is it separately incorporated in the written statement. After the preliminary objections and reply on merits to paras 1&2 of the plaint the respondents incorporated paras CC, 2-A after para 2 of the written statement, Para CC. 3-A after para 3 of the written statement and so on and so forth. The petitioners filed replication-cum-written statement to counter claim. Thereafter, issues were framed on 18.8.1999. On 7.1.2000 the plaintiffs did not press the suit which was dismissed as not pressed but the counter claim obviously survived. In the meantime the plaintiffs filed another civil suit No.237/1 of 99 titled Bachana and another vs. State of H.P. in which it was alleged that the well in question was in fact situated in khasra No.75 which was owned by the State of Himachal" Pradesh. Prayer for consolidation of that suit and the counter claim was made which was rejected.

7. Thereafter, the present petitioner filed an application under Order 6 Rule 17 CPC for amendment of the replication-cum-written statement to the counter claim. By means of this application the petitioners wanted to bring in new facts. According to the petitioners demarcation has been conducted on the request of the villagers by the Tehsildar Nalagarh and it has been found that the well in dispute is actually situated in khasra No.75 and not in khasra No.76. It was further averred that khasra No.75 was owned by the State of Himachal Pradesh. An objection was also sought to be raised that since the land had been allotted to the State of Himachal Pradesh during consolidation proceedings the Court had no jurisdiction to hear and entertain the counter claim.

8.This application was contested mainly on the ground that the applicants were withdrawing from their earlier admissions that the well as situated in khasra No.76 and that they could not be permitted to raise this inconsistent plea. It was averred that a new case is sought to be made.

9. The