HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 364 of 2023 Court No. - 9 HON'BLE MANISH KUMAR NIGAM, J. 1. Rejoinder affidavit filed today is taken on record. 2. Heard learned counsel for the parties and perused the record. 3. This petition has been filed challenging the order dated 02.11.2019 passed by Civil Judge (Junior Division) Agra, allowing the application for amendment in the plaint filed by the plaintiff. Against the order dated 02.11.2019, a revision has been filed which was rejected by order dated 23.08.2022, hence the present petition has been filed by the defendant/petitioner. 4. Contention of the learned counsel for the petitioner is that the case of the plaintiff in the plaint was that there was a family partition of the property in dispute and the suit was initially filed for relief of permanent injunction. By the amendment, the petitioner sought relief of partition and have also added other ancestral property of the parties. It has been further contended by learned counsel for the petitioner that once the petitioner filed written statement and stated that property no. 32/87 came in possession of the petitioner on the basis of family partition between the parties, the present application has been filed for partition of the said property also. It has been further submitted by learned counsel for the petitioner that plaintiff has developed the plot which was allotted to him in the family partition and once the petitioner started developing the area which came in his share, the present suit was filed. Versus Counsel for Petitioner(s) : Ajay Kumar Sharma, Atul Sharma Counsel for Respondent(s) : Devesh Mishra, Rishi Chadha, Tripathi B.G. Bhai Surendra Singh .....Petitioner(s) Sri Mahendra Singh And 2 Others .....Respondent(s) 5. The Supreme Court in case of Rajesh Kumar Agarwal & others v. K. K. Modi & others reported in 2006 (4) SCC 385 held in paragraph no. 15 as under: "In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit." 6. From the perusal of the plaint, it is very much clear that the petitioner has claimed the property to be joint property without there being any legal partition. It has also been stated in the plaint that the parties are living in the property in dispute with their convenience and in paragraph no. 9 of the plaint the plaintiff/respondent has already reserved his right to file the suit for partition. The court below while allowing the application, has rightly held that though the amendment changes the nature of the suit but by the said amendment, no prejudice is going to be caused to the defendant. Further that all the disputes between the brothers has to be decided in one suit because there is no bar in filing suit for partition, in case, the plaintiff/respondent, if so desires. Once, the plaintiff/respondent has filed the suit for injunction, there is no impediment in moving an application for amendment in the plaint in order to claim all the reliefs to which the petitioner is entitled subject to success in the suit. 7. There is no impediment in filing a separate suit by the plaintiff for partition of the properties and therefore, the said relief can also claimed in the pending suit and no illegality has been committed by the courts below in allowing the amendment application. 8. This petition lacks merit and is accordingly, dismissed. September 9, 2025 Ved Prakash A227 No. 364 of 2023 2 (Manish Kumar Nigam,J.) Digitally signed by :- VED PRAKASH SHARMA High Court of Judicature at Allahabad