Hon’ble Rajan Roy, J.—Heard Sri Apurva Hajela, learned counsel for the petitioner and Sri Om Prkash, learned counsel for the respondent No. 1. Respondent Nos. 2 to 6 are proforma respondents.

2. By means of this writ petition, the petitioner defendant is challenging the order of the first appellate Court by means of which the application of the respondent No. 1 plaintiff for amendment of the plaint filed at the appellate stage has been allowed.

3. The petitioner and respondents are all legal heirs of late Sri Ram Sewak Geda and there is no dispute about this fact. After the death of late Ram Sewak Geda, the respondent No. 1, i.e. his daughter filed a suit for partition in the year 2005 impleading other legal heirs including the mother Ram Pyari. It was stated in the plaint that the property in question is the self acquired property of late Sri Ram Sewak Geda. She claimed 1/7th share of the total property. After framing the issues, a preliminary decree was passed on 14.2.2008 to the effect that the property in dispute shall be divided in seven equal parts and a share of which shall be given to the petitioner. Being aggrieved, all the legal heirs, i.e. the petitioner Mohan Lal Geda, Smt. Ram Pyari and Hari Shankar Geda have filed an appeal, i.e. Civil Appeal No. 35 of 2008. During pendency of the appeal, the mother i.e. Ram Pyari died on 3.1.2012. As the mother had 1/7th share in the property of late Ram Sewak Geda, therefore, consequent to her death, an amendment application was filed by the respondent No. 1 plaintiff at the appellate stage seeking amendment in the prayer clause of the plaint of O.S. No. 296 of 2005 claiming 1/6th share in the property. Objections were filed. The aforesaid application for amendment was allowed vide order dated 17.10.2010. It is against this order, the present writ petition has been filed.

4. The contention of Sri Apurva Hajela, learned counsel for the petitioner is firstly that the application for amendment was not supported by any affidavit and as in view of the amendment to the C.P.C. made in the year 2002, pleadings have to be supported by an affidavit, therefore, the amendment application was also required to be supported by an affidavit, therefore, the learned appellate Court erred in allowing the same. In this regard, he placed reliance upon paragraph-4 of the judgment of the Supreme Court in Salem Advocate Bar Assocation v. Union of India, 2005 (6) SCC 344 and the provisions of Order VI Rule 15(4) read with Section 26(2), C.P.C. Para-4 of the said judgment is quoted below:

“4. Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. We are unable to agree. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof.”

5. The other contention of the learned counsel was that by means of the amendment, only the prayer clause had been amended whereas the valuation and Court fee payable would also undergo a change but no such amendment was sought. The proposed amendment was based on a separate cause of action, i.e. the death of the mother-late Smt. Ram Pyari whereas the suit was filed for partition of the property belonging to the father, i.e. late Sri Ram Sewak Geda. A separate suit ought to have