The main legal point established in the judgment is the requirement of due diligence and the timing of raising matters before the commencement of trial under Order 6 Rule 17 of the Code of Civil Procedure.

Shantanu Kemkar, J.

1. By this petition, under Article 227 of the Constitution of India, the Petitioner (Defendant No. 1) has challenged the order dated 31-10-2007 passed by 1st Civil Judge, Class I, Neemuch in Civil Suit No. 74-A of 2005, by which the Plaintiff's applications filed under Order I Rule 10 and under Order 6 Rule 17 of the Code of Civil Procedure (for short Code of Civil Procedure) have been allowed.

2. Briefly stated, the Plaintiffs (Respondent Nos. 1 and 2 herein) have filed a Civil Suit on 6-9-2005 against the Petitioner as also against the Respondent Nos. 3 and 4 (Plaintiffs' father and mother) and 9 (State Government) seeking declaration of partition and permanent injunction in respect to the agricultural land. It was alleged that the said land being ancestral property of their family, which fell in their share as per the family arrangement carried out 5-7 years back, the Respondent Nos. 3 and 4, could not have sold the same to the Petitioner (Defendant No. 1).

3. The Petitioner who had purchased the said land from the Defendant Nos. 2 and 3 by way of a registered sale deed executed on 4-7-2005 for consideration of Rs. 3.24 lakhs filed written statement alongwith a counter claim seeking permanent injunction that the Plaintiffs and the Defendants Nos. 2 and 3 from whom she had purchased the land, be restrained from interfering into her possession. A specific plea was raised by the Petitioner that since the Plaintiffs have failed to join their sister Rekha Bai in the suit, the suit suffers from non-joinder of necessary parties.

4. On the basis of the pleadings raised by the parties, the Trial Court framed various issues. On the basis of Petitioner's objection in the special pleadings an additional issue was framed on 16-2-2006 as to whether suit suffers from non-joinder of necessary parties ? The said additional issue was decided as a preliminary issue by the Trial Court vide order dated 2-3-2006 in favour of the Plaintiffs by holding that the Plaintiffs' sister Rekha Bai is not necessary party.

5. Thereafter the Plaintiffs led their evidence. On completion of the Plaintiffs' evidence, the Defendant Nos. 2 and 3 submitted their evidence on affidavit as examination-in-chief. At that stage, the aforesaid two applications were filed by the Plaintiffs. In the application under Order I Rule 10 of Code of Civil Procedure, the Plaintiffs prayed for adding their uncles and sisters including Rekha Bai as Defendants to the suit. In the application under Order 6 Rule 17 of Code of Civil Procedure, a prayer was made by the Plaintiffs to amend the plaint so as to make averment and include the relief to the extent that mutation and the partition effected on 15-3-2002 and 10-6-2002 respectively by their father and his brothers (Plaintiffs' uncles) without notice to the Plaintiffs, be declared to be null and void.

6. The Petitioner submitted reply to the aforesaid applications and objected the same. The Trial Court, vide impugned order dated 31-10-2007, allowed both the applications. Feeling aggrieved, the Petitioner (Defendant No. 1), has filed this writ petition.

7. Shri Sameer Athawale, Learned Counsel for the Petitioner argued that on the specific plea being raised by the Petitioner in her written statement that the suit filed by the Plaintiffs suffers from the defect of non-joinder of necessary parties as the Plaintiffs have not joined their sister in the suit, the Trial Court had framed an additional issue on 16-2-2006 to the effect "whether the suit suffers from non-joinder of necessary parties". The said issue having decided by the Trial Court in favour of the Plaintiffs vide order dated 2-3-2006 holding that the Plaintiffs' sister is not the necessary party, it has committed error in allowing the prayer for joining the same Rekha Bai and others as party contrary to its own decision on the said issue. According to him, by allowing of said prayer the Trial Court has reviewed its own order which is not permissible. As re