ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:

A. That, the order passed by the trial Court annexure P/1 dated

05.10.2015 be quashed and the proposed amendment be allowed.

B. Cost of the petition may be awarded any other relief which the Hon'ble court thinks fit in the fact and circumstances of the case be granted.

It is submitted by the counsel for the petitioner that the petitioner and the respondent No.1 are real brother and sister. The petitioner has filed a suit for declaration of title and permanent injunction in respect of house No. 9 and 10 situated in Ward No.15, house No.36 situated in Ward No.12 and agricultural land bearing survey No.276 area 0.031 hectare situated in Chanderi. It is submitted that initially the suit was filed only for declaration of title and permanent injunction. The suit was filed in the year 2013 and defendants filed their written statement on 8.10.2013. Thereafter, on 20.8.2014 the petitioner took legal advice from other counsel, then she was informed that unless and until the consequential relief of partition and separate possession is not sought, the petitioner may not succeed in the suit and, accordingly, an application for amendment under Order 6 Rule 17 of CPC was filed which has been rejected by the Trial Court on the ground that the issues were framed on 12.11.2013 and on 23.7.2014, the additional issues were framed. On 13.5.2014 the plaintiff witness Hari was cross-examined and thus the amendment application has been filed after the trial has begun and no reason has been assigned for delay in moving an application for amendment. It is submitted that it is true that the amendment application was filed after the trial had begun but the amendment is based on legal aspects as the petitioner is of the view that in absence of a consequential relief of partition and separate possession she may not succeed by seeking declaration of title only. Furthermore, every efforts should be made to avoid multiplicity of suit. Even the petitioner succeeds in getting a declaration of her title, she may not be able to get her share separated and for that purpose she will be required to institute another suit for partition and separate possession which may also be hit by the doctrine of constructive res judicata.

Under these circumstances, it is submitted that when the amendment is not not based on any factual aspect but it is based on legal aspect and since the petitioner is a rustic villager having no knowledge about the law, then she should not be non-suited because her lawyer did not give her proper advice.

Per contra, the petition is vehemently opposed by the counsel for the respondents. It is submitted that the application was filed subsequent to the beginning of trial and even one the plaintiff witness was cross-examined and the explanation of delay which has been put forward by the petitioner cannot be accepted.

Heard the learned counsel for the parties.

The proposed amendment is based on the legal aspects of the matter. The petitioner has not sought amendment on factual aspects. The petitioner is a rustic village. She is right in submitting that she was not having knowledge about the niceties of the law. Only when she contacted a lawyer at Indore, she came to know that she may not succeed because of technical glitch. Furthermore, by seeking declaration of title, the petitioner may not be able to get her separate share. The relief for partition and separate possession is necessarily based on the declaration of title, therefore, the relief sought by the petitioner by moving an application for amendment can always be treated as a consequential relief. It is true that the application has been filed belatedly specifically when one of the plaintiff witness was already cross-examined. However, this Court is of the considered opinion that the respondent can be compensated by imposing cost. Accordingly, the application filed by the petitioner under Order 6