ORAL JUDGMENT

Date : 04-07-2024 Heard learned counsel for the parties and I intend to dispose of the petition at the stage of admission itself.

2. The instant petition is filed under Article 227 of the Constitution of India against the order dated 15.11.2022 passed by learned Sub Judge 1st, Arwal in Partition Suit No. 18 of 2022 whereby and whereunder he rejected the petition dated 31.08.2022 filed on behalf of the plaintiff/peitioner under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter “the Code”).

3. Learned counsel for the petitioner submits that the plaintiff/petitioner has filed Partition Suit No. 18 of 2022 against the defendants/respondents for passing a preliminary decree to the extent of half share in the suit property and also for carving out a share after appointing Survey Knowing Pleader Commissioner along with other reliefs. Prior to filing of the written submission, an application under Order 6 Rule 17 of the Code has been filed on 31.08.2022 seeking certain amendments in the plaint. Rejoinder was filed on behalf of the defendants and the learned trial court having considered the submissions rejected the amendment application of the plaintiffs vide the impugned order dated

15.11.2022.

Learned counsel further submits that the learned trial court rejected the prayer for amendment on the ground that amendments which were sought would replace the original suit property with new set of suit property and thus it would completely change the subject matter of the suit. But this view of the learned trial court is completely wrong and erroneous. The amendment has been sought at the initial stage when the written statement was not filed and there is no change of subject matter since the change is with regard to description of the suit property. Moreover, the change of subject matter is not barred unless it changes the nature of the suit. Till date issues have not been settled in the case. Learned counsel further submits that it is a case for partition and the plaintiff being a lady was not knowing about the details of the properties and for this reason she could not bring all these properties in her plaint which was filed seeking partition. Thus, learned counsel submits that since the amendments have been sought at the preliminary stage of the suit, the same may be allowed and the impugned order may be set aside.

4. Learned counsel appearing on behalf of the respondents submits that the petition of the plaintiff has been rightly rejected. The petition was filed without any affidavit and in a perfunctory manner. Learned counsel also pointed out that the subject matter of the suit is one of the essentials of the suit and if the subject matter is changed the whole suit would change. Learned counsel also pointed out that even the plaint which has been filed before the learned trial court has not been properly affidavited. If the plaint is not supported by an affidavit in its proper format, the plaint ought not to have been accepted. Learned counsel further submits that if any amendment is allowed at this stage the same would be incorporated in the plaint which has not been filed in proper manner by swearing a proper affidavit. Further, even the application seeking amendment has not been duly affidavited. On these counts the order of the learned trial court should be allowed to stand. Relief, if any, which could be granted to the petitioner is to remand the matter to the learned trial court with direction to the petitioner to file proper application seeking amendment.

5. I have given my thoughtful consideration to the rival submission and facts and circumstances of the case. Order 6 Rule

17 of the Code reads as under:

“Amendment of Pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the par