ORDER

1. Both the parties are heard.

2. Petitioner has preferred this miscellaneous petition under Article 227 of the Constitution of India being aggrieved by impugned order dated 1.3.2024 passed by First Civil Judge, Junior Division, Sabalgarh, District Morena in Civil Suit No.27/2023, by which an application under Order 6 rule 17 of CPC filed by the petitioner has been rejected.

3. Brief facts of the case are that the petitioner/plaintiff has filed a civil suit for declaration in regard to 1/5th share in the suit property. The defendant came with a plea by filing written statement that the partition has already been effected between the parties. Respondents filed an application under Order 6 rule 17 of CPC by stating that plaintiff has not stated in the plaint specifying the part of the property which were possessed by them and the said I.A. was allowed and subsequently, petitioner/plaintiff filed another I.A. under Order 6 rule 17 of CPC and after hearing both the parties, same has been dismissed by the trial Court. Being aggrieved by the aforesaid, petitioner has preferred this miscellaneous petition.

4. Learned counsel for the petitioner contended that the trial Court has committed grave error of law while dismissing the application under Order 6 rule 17 of CPC filed by the petitioner. The amendments are consequential in nature and it cannot be said to be disallowed as per the principle laid down by the Supreme Court in the case of Life Insurance Corporation of India v. Sanjeev Builders reported in AIR 2022 SC 4256 which mandates that the application for amendment cannot be dismissed on the ground of delay. In the instant case, the application for amendment filed by respondent has been allowed on 23.2.2024 and thereafter the petitioner has preferred the said application on 26.2.2024 which cannot be said to be delayed. From the proposed amendment nature of the suit will not be changed. trial Court has not considered the facts. Amendments are consequential in nature, hence the impugned order be set aside and the amendment application filed by the petitioner may be allowed.

5. Per contra, learned counsel for the respondents opposed the prayer and prayed for its rejection by supporting the order passed by the trial Court.

6. Both the parties are heard and perused the entire record with due care.

7. From perusal of the documents filed by both the parties, it appears that petitioner has filed a civil suit for permanent injunction and partition in the year 2003. The respondent has filed an application under Order 6 rule 17 of CPC which has been allowed by the Trial Court vide order dated 23.2.2024. Thereafter, the petitioner has preferred the said application.

8. Counsel for the respondents opposed the prayer by submitting that petitioner has failed to prove that in spite of due diligence they could not raise the matter before commencement of trial. Therefore, no application can be allowed after commencement of trial but in the present case, although the issues have been framed and case is fixed for plaintiff's evidence but the evidence is not begin yet. At the stage of plaintiff evidence both the parties have filed their independent application under Order 6 rule 17 of CPC. Petitioner has preferred this application after allowing the amendment application filed by the respondent, therefore, the application cannot be said to be delayed.

9. The Co-ordinate Bench of this Court in the case of Devendra Sadho v. Smt. Pramila Kumar reported in 2023 (II) MPWN 102 has held as under:

"In my opinion, under such circumstances when specific pleadings are there in the plaint, the relief of partition and possession not claimed, can be claimed by the plaintiff/respondent No.1 by making amendment in the prayer clause and allowing the amendment does not change the nature of suit because the existing facts have not been disturbed and no new fact was inserted. The relief of possession is a consequential relief and as per the existing pleadings, the same