JUDGMENT

Dr. B.R.Sarangi, J.

The plaintiff-petitioners have filed this petition assailing the order dated 29.10.2009 passed by the learned Civil Judge(Senior Division), Bargarh in Civil Suit No. 195 of 2007 under Annexure-5 rejecting the application filed for amendment of the plaint under Order 6, Rule 17, CPC.

2. The epitome of the facts of the case is that the petitioners, as plaintiffs, filed C.S. No. 195 of 2007 before the learned Civil Judge (Senior Division), Bargarh seeking for declaration of their right, title and interest in respect of the suit land. The plaintiffs’ grandfather had purchased some land as mentioned in the schedule vide registered sale deed nos.6405, 6027 and 263 in between 1971 and 1978. On receipt of consideration money and after execution of sale deed, possession was delivered in the year 1971 and 1978 respectively. Late Bhojraj Sarangi, the grandfather of the plaintiffs had executed a will in favour of the plaintiffs, i.e., his grand sons, which was duly executed by the testators in presence of the attesting witnesses, his son, daughter-in-law and some gentlemen. After execution of the sale deed, Late Bhojraj Sarangi filed an application before the Tahasildar for mutation of the land, but the Tahasildar refused to accept the said application as the sale deed contained his Hamid settlement plot. Therefore, the suit has been filed by the plaintiffs for declaration of their right, title and interest and confirmation of possession in respect of the suit land.

3. On being noticed, defendant-opposite party no.1 appeared and filed his written statement admitting the case of the plaintiffs, whereas defendant-opposite party no.2 filed written statement denying the averments made in the plaint.

4. In course of hearing of the suit, the plaintiff-petitioners having realized that certain facts have not been specifically pleaded in the plaint, which have bearing on the merits of the case, filed an application under Order 6, Rule 17, CPC for amendment of the plaint vide Annexure-3 to this writ petition. In the said application, they have mentioned that after purchasing the land in between 1971 and 1978, Late Bhojraj Sarangi had constructed a pucca house with tile roofs. In the year 1978 he also purchased the adjacent land from defendant no.1. After the house was constructed it was included in Bargarh Municipality bearing Holding No.2112 dated 27.2.1976. Subsequently, he removed the tile roof and constructed a pucca double storied building, which is being possessed by the plaintiff-petitioners. Late Bhojraj Sarangi had also filed T.S. No. 59 of 1982 for easmentary right.

5. Defendant no.2 filed objection to such proposed amendment under Annexure-4.

6. Learned trial court upon hearing the parties, rejected the said petition for amendment on the ground that the plaintiffs have not assigned any reason to show that in spite of due diligence, they could not plead these facts, which they want to incorporate by way of amendment to the plaint. Further, the trial court also observed that the amendment sought for, if allowed, will change the nature and character of the suit, and thereby the defendant will be prejudiced.

7. Mrs. Sujata Jena, learned counsel appearing for the plaintiff-petitioners states that the amendment sought for is clarificatory in nature in view of the fact that the plaintiff-petitioners have specifically pleaded in the application that after execution of the sale deed, delivery of possession was given to Late Bhojraj Sarangi and since then he was possessing the land and after him, the plaintiff-petitioners are in possession of the same. By way of amendment the plaintiff-petitioners wanted to clarify that the house was constructed on the said plot by Late Bhojraj Sarangi and it has been included in the Bargarh Municipality. Therefore, the introduction of fact being clarificatory in nature, will not affect the nature and character of the suit, which was filed for declaration or right, title and interest