ORDER

1. Since pleadings are complete and learned counsel for the parties are ready to argument the matter, therefore, it is heard finally.

2. By the instant petition filed under Article 227 of the Constitution of India, the petitioners/plaintiffs are challenging the legality, validity and propriety of order dated 15.9.2022 (Annexure-P/4) passed by the Court of 08th Civil Judge Junior Division, Jabalpur in RCSA No.6335/2020 whereby the trial Court has rejected their application filed under Order 6 rule 17 of the Code of Civil Procedure.

3. As per facts of the case, the petitioners/plaintiffs had filed a suit for declaration of ownership of land bearing Khasra No.1/1 measuring 0.345 hectares and recovery of possession along with a mandatory injunction to remove the construction raised and permanent injunction to restrain alienation/creation of encumbrance on the property in dispute. However, according to the petitioners a property admeasuring 1.356 hectares belonged to Ghinau @ Ghisru Lodhi and Ramdas Lodhi. On partition between the two in the 1978, the property in dispute came to be vested with Ghinau @ Ghisru Lodhi (dead -01.08.1985). Ghinau @ Ghisru Lodhi had a wife named Renaka Bai (dead -18.06.1989). The two had a couple of children i.e. Keshar Bai (plaintiff No.6) and Narad Singh Lodhi (dead 30.7.2001). Narad Snigh had a wife named Dhilla Bai (plaintiff No.5) with whom he had four children i.e. Sunil (plaintiff No.1), Prahlad (plaintiff No.2) and Ganga (plaintiff No.4).

(3.1) During pendency of suit, it came to the knowledge of the plaintiffs that the defendants in collusion with the revenue officers fabricated the documents and got their names mutated in the revenue record in the year 2018-19. Not only this, but the defendants had also raised construction over some part of the property in dispute and as such, it was claimed by the plaintiffs that they came to know about the said fact w.e.f. 9.12.2019. It was also claimed by the plaintiffs that on the basis of mutation made in favour of the defendants, they are trying to alienate the property. The plaintiffs had also come to know that in respect of property in dispute, some sale-deeds had already been executed on 25.6.2021 in favour of some of the persons and that fact was necessary to be brought on record and, therefore, they moved an application under Order 6 rule 17 of the CPC on 20.07.2021 (Annexure-P/3) before the trial Court seeking amendment in the plaint.

(3.2) Opposing the averments made in the application filed under Order 6 rule 17, the defendants had filed a reply.

(3.3) Thereafter, the trial Court vide impugned order dated 15.9.2022 (Annexure-P/4) has rejected the application mainly on the ground that the amendment which was sought to be brought on record is barred by limitation. Hence, this petition.

4. Shri Kochar, learned counsel for the petitioners has submitted that the trial Court has rejected the application without appreciating the fact that the amendment sought by the plaintiffs is necessary for fair and proper adjudication of the case. He has further submitted that the trial Court has committed a patent illegality in rejecting the application on the ground that the pleading which is sought to be brought on record is barred by limitation whereas the said aspect could not be considered by Court at the time of considering the amendment application. According to him, the issue with regard to delay at the most can be framed and decided at the time of final decision of the case, but at the threshold, the application could not be rejected on the said ground. To bolster his contention, learned counsel for the petitioners has placed reliance upon the judgments of the Supreme Court viz. (2006) 4 SCC 385 [Rajesh Kumar Aggarwal and others v. K.K. Modi and others] and (2015) 6 SCC 557 [Madhukar Sadbha Shivarkar (dead) by legal representatives v. State of Maharashtra and others].

5. On the other hand, Shri Dixit, learned counsel for respondent No.3 has opposed the submis