ORDER

1. Heard finally, with the consent of the parties.

2. This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioners/defendants against the order dated 24.2.2024 (Annnexure P/1), passed by the Second Civil Judge, Junior Division Depalpur District Indore in RCSA5A/2018 (Civil Suit No.37-A/2015); whereby, an application filed by the respondent/plaintiff under Order 6 rule 17 of the Civil Procedure Code, 1908 (hereinafter to be referred to as ‘CPC”) for amendment in the plaint, has been allowed.

3. In brief, the facts of the case are that initially on 25.8.2015, the respondent filed a civil Suit RCS No.37-A/2015 against the petitioner no.1 before the Second Civil Judge, Class II, Depalpur seeking relief for deletion of the name of petitioner No.1 with regard to House No.187, Tilak Marg, Street No.1 Depalpur. In the aforesaid suit, the petitioner No.1 also submitted his written statement along with counter claim and an application under Order 7 rule 11 of the CPC was also filed for rejection of the suit which was decided on 8.9.2016, and the suit was rejected. Thereafter the aforesaid suit continued with respect to the counter claim filed by the petitioners, however, yet another civil suit which was filed by the respondent against the petitioners, which was registered initially as COS.No.5-A/2018 on 21.12.2017 and subsequently, renumbered as RCSA No.5A/2018. In the aforesaid suit a written statement was again filed by the petitioners, and subsequently both the suits namely RCSA.No.35-A/2015 and RCSA.No.5A/2018 were consolidated by the trial Court in the year 2019. It is only recently, i.e., on 23.2.2024, that the respondent/plaintiff filed an application under Order 6 rule 17 of CPC seeking amendment in the relief clause. The aforesaid application was allowed by the trial Court vide impugned order dated 24.2.2024, and being aggrieved by the aforesaid, the present petition has been filed.

4. Shri Rohit Mangal, learned counsel for the petitioners has submitted that the aforesaid application for amendment was totally misconceived in as much as the plaintiff was well aware of all the facts and circumstances of the case and no new facts were brought on record compelling the plaintiff to file the amendment application, and the facts which are now being sought to be brought on record were well within the knowledge of the plaintiff even before the written statement was filed. Thus, it is submitted that there was no reason for the trial Court to allow the application for amendment.

5. Shri Mangal has also submitted that by way of amendment the plaintiff is also trying to change the nature of the suit as earlier it was suit for declaration, whereas by way of amendment, it has been changed to suit for declaration of title and injunction, and that to when the trial has already commenced.

6. In support of his submissions, Shri Mangal has relied upon the decision rendered by the Supreme Court in the case of Rajkumar Gurawara (Dead) Through L.RS. v. S. K. Sarwagi and Company Private Limited and another reported as (2008) 14 SCC 365 para 18 as also the order passed by the Supreme Court in the case Asian Hotels (North) Limited v. Alok Kumar Lodha and others reported as (2022) 8 SCC 145.

7. Prayer is opposed by counsel appearing for the respondent/plaintiff and it is submitted by Shri Paresh Joshi, learned counsel for the respondent that no case for interference is made out as the petitioners have already carried out the consequential amendment in their written statement, and the matter is now fixed for recording of the evidence. It is also submitted that the learned judge of the trial Court has also imposed cost of Rs.4000/- for filing the application after some delay. Counsel for the respondent has submitted that no prejudice has been caused to the petitioners on account of the aforesaid amendment, and they would have ample opportunity to lead evidence in respect of the amendment.

8. Shri Joshi has als