R.C. Patnaik, J.
1. This revision is directed against an order disallowing the plaintiff's prayer for amendment of the plaint by way of addition of a relief of partition in a suit seeking relief under Section 4 of the Partition Act, 1893.
2. The plaintiff has averred in the plaint that the disputed property is a piece of land necessary for the enjoyment of -the undivided family dwelling house and the transfer by defendant No. 2, a co-sharer, of his half interest in the suit property has entitled him to seek a relief under Section 4 of the Partition Act. So he has sought to buy out the share purchased by defendant No. 1.
3. In paragraph-4 of the written statement defendant No. 1 has averred that the sole relief to repurchase was not maintainable. He has also controverted the assertion of the plaintiff that the suit property was a part of the dwelling house of the undivided family.
4. Trial of the suit commenced on 9-12-80 and was closed on 11-12-80. The case was posted for hearing arguments. On 16-12-80 an application was filed by the plaintiff-petitioner under Order 6, Rule 17 of the Civil P.C., for amendment of the plaint. He wanted incorporation of the relief of partition. The trial Court rejected the prayer holding that the amendment was sought at a belated stage and was, therefore, prejudicial to the defendants.
5. Mr. Sahu for the petitioner strenuously urged that an amendment of the pleadings could be made at any stage of the suit and the mere delay in the facts and circumstances was not a sufficient ground for rejecting the prayer. It was necessary to set at rest the real controversy between the parties and was a formal defect, (sic) The stage at which the application for amendment was made was not important. He drew my attention to some authorities where additional relief has been incorporated by way of amendment even at the first and second appellate stages, even when the matter was pending before the Privy Council or the Supreme Court.
Mr. N.P. Parija, the learned counsel for opposite party No. 1, however, submitted that if it was a case of mere incorporation of relief without anything more, then the amendment could be allowed. Ho pointed out that it is not a case of a mere formal addition of relief. If the suit was to be converted to a suit for partition by way of amendment, all the co-sharers would be necessary parties. The co-sharers not having been impleaded as parties, the suit for partition without them would not be maintainable.
6. In regard to the non-joinder of necessary parties, I may observe that the petitioner has not sought to implead any person as a party. The amendment was sought to remove a formal defect. Relief under Section 4 of the Partition Act can be claimed in a suit for partition. The omission to seek the relief was, therefore, inadvertent and due to a bona fide mistake. As Order 6, Rule 17 itself indicates, an amendment can be sought at any stage of the litigation. In Secretary of State v. I.M. Lall, AIR 1945 FC 47, the prayer for amendment was allowed when the matter was pending before the Federal Court.
7. In this case, all necessary allegations have been made in the plaint. The requisite pleas have been raised. The parties were aware of the points in controversy. So, in my opinion, the amendment did not alter the nature of the case which was essentially one for seeking relief under Section 4 of the Partition Act. The petitioner has not sought amendment of the pleadings. The amendment is confined to the relief only. In Jemma v. Raghu, AIR 1977 Orissa 12, amendment seeking addition of a relief for recovery of possession was disallowed by a learned single Judge hearing the second appeal. In Letters Patent the plaintiffs prayer for amendment was allowed.
8. In this case, though the prayer was made at the close of the hearing, I am of the view that the amendment is essential and should be allowed. Whether in consequence of the amendment, the suit would be maintainable or not, is not a matter before me. The petitioner has not made any prayer for addition of any party. On the other hand Mr. Sahu submitted that the suit would proceed with the parties on record. So, as rightly submitted by Mr. Parija, it shall be open to defendant No. 1 to challenge the maintainability of the suit on the ground of non-joinder of necessary parties and to raise other pleas as he may like in his additional written statement. In view of the objection raised by Mr. Parija, the trial Court would raise an issue as to whether the suit is bad for non-joinder of necessary parties. The parties shall be at liberty to adduce further evidence on this issue only.
9. In the result, the impugned order is set aside and the revision is allowed with the observations made above. There would be no order as to costs.