2019 Supreme(SC) 160

SUPREME COURT OF INDIA
N.V. Ramana, Mohan M. Shantanagoudar, JJ.
M. REVANNA – APPELLANT
VERSUS
ANJANAMMA (DEAD) BY LRS. & ORS. – RESPONDENTS
CIVIL APPEAL NO. 1669 OF 2019 (@ S.L.P. (Civil) No. 19188 of 2010)
Decided On : 14-02-2019

IMPORTANT POINT
Leave for amendment of plaint cannot be allowed after commencement of trial unless Court is satisfied that in spite of due diligence, party could not have raised the matter before the commencement of the trial. Further, leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit or is mala fide or causes prejudice to other side which cannot be compensated adequately in terms of money.

Headnote:Code of Civil Procedure, 1908 – Order VI Rule 17 – Leave for amendment of plaint – Cannot be allowed after commencement of trial unless Court is satisfied that in spite of due diligence, party could not have raised the matter before the commencement of the trial – Further, leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit – Or, is mala fide – Or, causes prejudice to other side which cannot be compensated adequately in terms of money – Instantly suit filed in 1993 – Defendants 4 to 6 not made parties – They making application for dismissal of the suit – Application for amendment of plaint filed on 01.09.2008 on basis of a memorandum of partition allegedly executed in 1972 – By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing – Nothing prevented plaintiffs making the necessary averment in the plaint itself filed in 1993 – Held, application for amendment not only belated but also not bona fide – If allowed, would change the nature and character of the suit and would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier – Granting permission for amendment of plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1. (Para 6, 7)

       Facts of the case:

       Plaintiff Nos. 1 to 5, including the appellant herein, filed a suit seeking partition and separate possession of joint family properties to the extent of 1/6th share to Plaintiff Nos. 1 to 3, 1/6th share to Plaintiff No. 4 and 1/6th share to Plaintiff No. 5. Initially, only three defendants were made parties to the suit. Immediately upon the appearance of Defendant Nos. 1 to 3, a compromise petition was filed on behalf of Plaintiff Nos. 1 to 5 and Defendant Nos. 1 to 3, contending that the plaintiffs and defendants had divided the joint family and ancestral properties as per the memorandum of partition dated 18.05.1972. The compromise petition came to be filed in the Trial Court on 22.04.1993. The Defendant Nos. 4 to 6, who also belong to the same family as the persons mentioned above, filed an application for impleadment and opposed the compromise petition, contending specifically that the joint family properties had not been divided at any point of time and that the family, as well as its properties, continued to be joint. However, the Trial Court dismissed the suit as having been compromised.

       After remand of the case by High court to trial court, Plaintiff Nos. 1 to 5 did not adduce any evidence initially. However, Plaintiff No. 6/Respondent No. 1 herein adduced evidence on 02.07.2003 and was thoroughly cross-examined by Plaintiff Nos.1 to 5. Though Plaintiff No. 1 tried to give evidence as PW-2, he did not make himself available for cross-examination from 2003 to 2007. Consequently, he was discharged by the Trial Court. However, after prolonged adjournments, PW2 made himself available and was cross-examined on 12.02.2008. Thereafter, on 01.09.2008, Plaintiff Nos. 1 to 5 made an application for amendment of the plaint, pleading that a prior partition had taken place as per the memorandum of partition dated 18.05.1972. The Respondent No. 1 herein and the other two contesting defendants, i.e. Defendant Nos. 4 and 5 objected to the amendment application. The Trial Court, however, allowed the application for amendment which came to be set aside by the High Court by the impugned order.

       Finding of the Court:

       Granting permission for amendment of plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1.

       Result: Appeal dismissed.