The court emphasized the need to avoid multiplicity of litigation and cited various judgments to support the decision.

Sujoy Paul, J.:-

The parties are in loggerheads on the question of amendment in the suit. This matter has a chequered history. Petitioner/plaintiff filed a suit for declaration and permanent injunction. By order dated 14.12.2010 (Annexure P/2) issues were framed by the court below. Issues No. 4, 5 & 6 were decided as preliminary issue by order dated 10.02.2011. Since preliminary issue No. 4 was decided against the petitioner/plaintiff, the suit was dismissed. This order passed in Civil Suit No. 3A/2009 dated 10.02.2011 was challenged in First Appeal No. 123/2011. This Court, by order dated 27th November, 2012 allowed the appeal and set aside the order of court below. The trial court was directed to determine all the issues after recording evidence of the parties. On remand, the petitioner filed an amendment application under Order 6 Rule 17 C.P.C on 18.02.2013 (Annexure P/5). It was opposed by the other side. The Court below has rejected the amendment application for the following reasons:-

1. If the amendment is allowed, it will change the nature of the suit.

2. It will be difficult to decide the issues already framed which will amount to violation of High Court's order.

3. The suit was filed on 01.12.2009 amendment is filed after four years on 18.02.2013. Hence, there is an inordinate delay in filing the application.

4. The petitioner has not shown due diligence and therefore, as per proviso to Order 6 Rule 17 C.P.C amendment cannot be allowed after commencement of the trial.

2. Shri B.B. Shukla, learned counsel for the petitioner, criticized the said order by contending that petitioner earlier could not file the amendment application because the suit was dismissed while deciding the preliminary issue. After remand of the matter, he filed the amendment application which needs to be allowed. He submits that amendment does not change the nature of the case. It is necessary for lawful adjudication of the case. It will minimize litigation. Before filing amendment application, the affidavits under Order 18 Rule 4 C.P.C. were not filed and therefore, trial had not commenced. He relied on certain judgments in support of his contention.

3. Per Contra, Shri B.D. Jain, Shri S.M. Bhan and Shri R.S. Dhakad submit that court below has not committed any legal error in disallowing the said application. It is contended that amendment will change the nature of the case and it is belatedly filed. In addition, it is submitted that this court in first appeal has directed for deciding the issues. By way of amendment, petitioner is trying to wriggle out of said direction of this court which is impermissible. It is strenuously contended by Shri Jain by placing reliance on 1985 JLJ 730 (Gopal Vs. Administrative Officer, M.P. Khadi and Village Industries Board and Ors.) that since remand order is not challenged, the petitioner is bound by the same. He also relied on decision of this Court in WP No. 6775/2012 ( Smt. Hemlata Vs. Smt. Lalita Devi and Ors.)

4. I have bestowed my anxious consideration on the rival contentions of the parties.

5. It is seen that the suit was filed for claiming 1/4 share in the ancestral property. The declaration is sought for to declare the will as null and void qua the plaintiff. The permanent injunction is prayed for to restrain the defendants from interfering in the suit property. Other ancillary reliefs are also claimed. The petitioner/plaintiff intended to add in the relief of declaration about division by meats and bounds Petition intended to pay the court fees for the said relief. In AIR 1960 SC 335 (Mst. Rukhmabai Vs. Lala Laxminarayan and others) Apex Court opined that it is well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. In AIR 1990 MP 295 (Kalyan Singh Vs. Vakil Singh and Ors.) this court opined that it is the choice of the plaintiff to rest content by a mere decree for declaration in that suit and then to sue for fur