ORDER

1. This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioners/defendants No.5 & 6 being aggrieved by the impugned order dated 22.1.2020 passed by 4th Civil Judge, Senior Division, Mandsaur (M.P) in Civil Suit No.313A/2015, whereby the application under Order 6 Rule 17 CPC filed on behalf of the respondents No.1 & 2/plaintiffs to incorporate the additional pleadings in the plaint regarding the sale of the suit property by defendant No.1 & 2/respondent No.3 & 4 to the petitioner/defendants No.5 & 6 and after-sale of that suit property (house), the petitioner/defendant No.5 & 6 and defendants No.1 & 2, levelled the suit house by demolishing it, and in that levelled land, the plaintiffs/respondents No.1 & 2 has the title, therefore, it is necessary to partition the suit land and relief of partition be allowed.

2. The brief facts of the case are that the respondents No.1 & 2/plaintiffs have filed a civil suit before the learned trial Court for declaration of their share in the suit property and permanent injunction against the defendants No.1 & 2 for not alienating the suit property without partition and consent of plaintiffs and to not deliver the possession to anyone and to pass mandatory injunction against defendants No.3 & 4 to restrain them from registration of sale deed of the suit property.

3. During the trial, the respondents No.1 & 2/plaintiffs have filed an application under Order 6 rule 17 CPC to amend the plaint to the effect that during the pendency of the suit, the respondents No.1 & 2 have sold the suit property to respondents No.5 & 6 and executed the sale deed, and after execution of the sale deed, the defendants No.1 & 2 & 5 & 6 with an intent to destroy the title of the plaintiffs in the suit property, levelled the suit house by demolishing it. Therefore, it is necessary to partition the suit land on which the suit house was situated. The plaintiffs and the defendants No.1 & 2 or 5 and 6 have equal rights and share in the suit property.

4. Reply of amendment application was filed on behalf of petitioners/defendants No.5 & 6 and denied the averments made in the application and stated that the case was fixed for evidence and last opportunity was given, but since the witness was not present on the date fixed by the Court, therefore with intent to cause delay an application under Order 6 rule 17 of the CPC was filed and if the present amendment is allowed, then the nature of the suit will be changed, so prayed for dismissal of amendment application.

5. The trial Court has allowed the said application by the impugned order, against which the petitioners have filed the present petition before this Court.

6. Learned counsel for the petitioners submits that the impugned order passed by the trial Court is against the law and procedure since after the proposed amendment in the plaint, the nature of the suit will be changed, therefore, the trial Court has committed grave error while allowing the said application, hence prayed for setting aside the impugned order.

7. Learned counsel for the respondent submits that the trial Court has not committed any illegality or perversity while passing the impugned order and the impugned order is as per law, therefore, no interference is called for in this petition.

8. I have heard learned counsel for the parties and perused the annexures filed along with the petition.

The relief clause of the civil suit is reproduced below :--

¼v½ fMØh ?kks"k.kk dh oknhx.k ds i{k esa bl vk'k; dh iznku djus dh d`ik djsa fd yscj dkWyksuh] ubZ vkcknh eUnlkSj fLFkr Hkou Øekad 114 ¼,d lkS pkSng½ ftldk fooj.k okn pj.k&2 ¼nks½ esa fn;k x;k gS] esa oknhx.k dk ,oa izfroknh Øekad 1 ¼,d½ o 2 ¼2½ nks dk leku LoRo gSA
¼c½ fMØh LFkkbZ fu"ks/kkKk dh bl vk'k; dh iznku djus dh d`ik djsa fd izfroknh Øekad 1 ¼,d½ o 2 ¼nks½ yscj dkWyksuh] ubZ vkcknh] eUnlkSj fLFkr Hkou Øekad 114 ¼,d lkS pkSng½ ftldk fooj.k okn pj.k&2 ¼nks½ esa fn;k x;k gS] dk fcuk fof/kor c¡Vokjk