Narendra Nath Tiwari, J.
1. In this writ application the petitioner has prayed for quashing the order dated 16.12.2003 whereby the learned Court below has rejected the plaintiffs prayer for amendment in the plaint. The plaintiffs had filed the said application under the provisions of Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, stating, inter alia, that the defendants in their written statement have taken the plea of previous partition by virtue of a compromise decree passed in Partition Suit No. 314 of 1945 by the Court of Munsif, Ranchi. It has been stated that the plaintiffs had no knowledge about the said compromise decree passed in the said Partition Suit. It was further stated that if there is any such decree, the same must have been obtained by fraud. Since in the written statement the defendants have pleaded previous partition on that basis, the petitioner prayed for amendment in the plaint in order to bring about the necessary fact relating to the said partition suit and the compromise decree which they denied and alleged to be fraudulently obtained.
2. Learned Counsel for the petitioner submitted that in view of the said stand in the written statement, if the plaint is not amended, the plaintiff will be unable to meet the said new fact stated in the written statement by the defendants and shall not be able to prove their case for partition. Learned Counsel submitted that under the said circumstance, it is necessary for the ends of justice to amend the plaint. Learned Court below, without considering the same, has rejected the said prayer by the impugned order mainly on the ground that the amendment, if allowed, would change the nature of the suit as also the cause of action. It has been further held that the declaration sought for is time barred. Learned Counsel submitted that while considering an application for amendment, the Court below has taken into extraneous consideration and has erroneously held that the declaration is time barred. Learned Counsel submitted that the main relief prayed for is for partition and there is no question of any change in the nature of the suit or the cause if action. He further submitted that it may be a case of adding another cause of action relevant to the context of the case and the amendment is necessary also in order to avoid multiplicity of suit between the same parties.
3. Mr. P.P.N. Roy, learned senior counsel appearing on behalf of the respondents seriously contested and submitted that the proposed amendment is sought to be brought on record after a pretty long time, seeking declaration with regard to the decree which was passed in Partition Suit No. 314 of 1945. Learned Counsel submitted that the Court below has rightly held that the said declaration is now time barred. Learned Counsel further submitted that if the amendment is allowed, the partition suit will be converted into a suit for declaration that the compromise decree was obtained by fraud, and the same will change the nature of suit and there will be change in the cause of action for the suit as well.
4. After hearing the counsel for the parties, perusing the impugned order and materials on record, I find that the amendment has been sought for by the plaintiff in view of the statement made in the written statement regarding the compromise decree passed in Partition Suit No. 314 of 1945. The plaintiffs have sought amendment in order to meet the stand of the defendant regarding the earlier compromise decree which was not within their knowledge and was fraudulently obtained. In view of the said statement in the written statement, if the plaintiff is not allowed to add the statement and bring about suitable amendment in the body and the relief portion adding the relief, he will not get partition. The said compromise decree will be an impediment in the way of granting relief for partition and the suit will fail. Under the provisions of Section 44 of the Evidence Act, a party can prove that any judgment or order or decree which may be relevant under Sections 40, 41 and 42 was obtained by fraud and collusion. Unless the plaintiff is allowed to amend the plaint and to add those statements in the pleadings, he will not be able to take advantage of the provision of Section 44 of the Evidence Act and the purpose of the suit will also frustrate. Learned Court below, without taking into consideration the said aspect, has erroneously rejected the petitioner's application for amendment on the ground that if the same is allowed, it would change the nature of the suit and also change the cause of action. In my view, if the proposed amendment is allowed, the same will not alter or change the nature of the suit as the suit remains as partition suit and for the purpose of getting the relief for partition, the plaintiff is required to clear the impediment by seeking a declaration regarding the compromise decree passed in Partition Suit No. 314 of 1945. In the circumstances of the case, the amendment, if allowed, would serve the interest of justice and would prevent multiplicity of the legal proceedings. The Court below, thus, failed to exercise his jurisdiction properly by rejecting the petitioner's application for amendment. The impugned order is thus, set aside. This application is allowed. The amendment, prayed for by the plaintiff, is allowed, however subject to payment of cost of Rs. 1,500/- (Rupees One Thousand Five Hundred) to be paid to the defendants within a period of three weeks from the date of receipt or production of this order. The defendants-respondents shall be also entitled to file any additional written statement, if so required in view of the addition brought about in the plaint by the said amendment.