JUDGMENT :

Nidhi Gupta, J.

Present Civil Revision Petition has been filed by the defendant under Article 227 of the Constitution of India for setting aside of the order dated 08.07.2024 (Annexure P-6) passed by the learned Civil Judge (Junior Division), Gurugram; whereby application filed by the respondent/plaintiff under Order 6 Rule 17 CPC for amendment of the plaint (Annexure P-3), has been allowed.

2. It is inter alia submitted by learned counsel for the petitioner that the learned trial Court was in error in passing the impugned order as amendment of plaint has been allowed after commencement of trial, and after 5 plaintiff witnesses stood examined. Thus, order has been passed without application of judicious mind. Moreover, the amendment sought by the plaintiff would change the nature of the suit. The learned Civil Judge has also not considered the aspect of due diligence. Thus, the impugned order is not a speaking order; and therefore, deserves to be set aside.

3. Per contra, learned counsel for the respondent/plaintiff opposes submissions of the petitioner and submits that by way of amendment only an ancillary relief was sought by the respondent which had come to her knowledge just prior to filing of the application for amendment. Moreover, the amendment sought by the respondent was germane to the dispute in hand. It is reiterated that the matter came to the knowledge of the plaintiff on 04.03.2024; whereafter application for amendment was moved promptly on 23.04.2024. It is accordingly contended that the impugned order suffers from no error, and the present petition deserves to be dismissed.

4. Heard.

5. I find merit in the submissions made on behalf of the petitioner. Brief facts of the case are that the plaintiff/respondent had filed a civil suit dated 04.07.2017 (Annexure P-1) for permanent and mandatory injunction. Defendant/Petitioner had filed written statement thereto on dated 01.04.2023 (Annexure P-2). Replication was filed by the plaintiff; whereafter issues were framed vide order dated 17.11.2023 in the matter. Thereafter, plaintiff evidence commenced on 19.12.2023 pursuant to which 5 plaintiff witnesses were examined. At this stage, instead of concluding plaintiff evidence, the present application for amendment of plaint was filed by the plaintiff on 23.04.2024 (Annexure P-3); which has been allowed vide the impugned order dated 08.07.2024 (Annexure P-6).

6. By way of the said application, the plaintiff had sought amendment in para 5A, 5B and 5C, cause of action, and prayer clause to lay challenge to the Mutation No. 7793 sanctioned in favour of the petitioner on the basis of Sale Deed No. 3748 dated 21.06.1999. The plaintiff accordingly sought a declaration that the said mutation did not create any title in favour of the defendant regarding the suit land. A further prayer was made that the said mutation and subsequent Jamabandis are liable to be set aside; and that on the basis of said Jamabandi entries, the defendant could not interfere in the possession of the plaintiff. Accordingly, relief of declaration was sought that the Mutation No. 7793 is illegal, null and void and subsequent entries in the Jamabandi on the basis of such mutation were also illegal, null and void. From a bare reading of the above, it is clear that the amendment sought by the plaintiff could not have been permitted as it would change the very nature of the suit. Originally, the plaintiff had filed suit seeking permanent and mandatory injunction. By way of the impugned amendment, the plaintiff was seeking a declaration that the impugned mutation and Jamabandis in favour of the Petitioner, were illegal, and void. The same cannot be permitted by way of amendment as it changes the fundamental character of the suit.

7. A perusal of the record of the case further reveals that respondent has failed to exercise due diligence.

8. Order 6 rule 17 CPC stipulates as follows: -

. -The Court may at any stage of the proceedings allow either party to alter o