Point of law: Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

ORDER :

K. Vijaya Lakshmi, J.

1. This Civil Revision Petition is filed challenging the orders passed by the Principal Senior Civil Judge, Nandyal dated 26.06.2019 in IA No. 700 of 2017 in OS No. 211 of 2016.

2. The revision petitioner is the plaintiff and the respondents herein are the defendants in the petition. For the sake of convenience, the parties to this revision petition are hereinafter referred to as petitioner and respondents as arrayed before the trial Court.

3. According to the petitioner, he filed the above suit for partition of the plaint schedule properties into five equal shares by meets and bounds and to allot one such share to the plaintiff and the defendants and for such other reliefs. According to the plaint schedule, there are 13 items for partition. Case of the petitioner is that, 1st respondent is the mother, respondents 2 and 3 are the brothers and the 4th respondent is his sister; originally, the plaint schedule property is the ancestral property, belonging to one Nallala Thirupathi Reddy, who is the grandfather of the petitioner and respondents 2 to 4 and they were enjoying the plaint schedule properties jointly and dividing the usufructs equally; in the revenue records the plaint schedule properties are in the name of Nallala Nagi Reddy S/o. Thirupathi Reddy, who is the father of petitioner and respondents 2 to 4 and husband of 1st respondent; as the petitioner is a blind person, respondents are neglecting the petitioner and not giving his share of usufructs over the plaint schedule properties. As the petitioner and respondents are having equal shares i.e., 1/5th each over the plaint schedule properties and as the respondents have not divided the share of the petitioner, he filed the suit.

4. IA No. 700 of 2017 is filed by the plaintiff under Order VI Rule 17 and Section 151 of CPC seeking amendment of the plaint. In the affidavit filed in support of the petition, it is stated that he instructed his previous counsel that the partition should be between the petitioner and respondents 2 and 3 and that at the time of panchayat, himself and his brothers i.e., respondents 2 and 3, orally gifted some properties i.e., items 2 to 4 of the plaint schedule properties along with some land in Sy. No. 397/2132 admeasuring an extent of Ac. 1.57 cents situated at Gani village, in favour of defendants 1 and 4 and delivered possession of the same in the presence of elders; that respondents 1 and 4 are enjoying the said properties and that after the said oral gift, respondents 1 and 4 agreed for partition of the rest of the properties i.e., other than items 2 to 4, between plaintiff and his brothers; but his previous counsel due to over sight included the shares of respondents 1 and 4 also for partition in the above suit and hence, he filed the petition for amendment of the plaint

5. Counter-affidavit is filed by the respondents contending that they filed a memo in the suit, stating that they have no objection to pass a decree as prayed for and that the said suit is coming for trial as issues were also framed long back; the proposed amendment would cause injury to the respondents and hence, amendment cannot be permitted unless the plaintiff satisfies the Court that in spite of due diligence, the issue could not be raised in the suit before commencement of the trial; amendment of the plaint will alter the nature of the suit and that it will take away the legal right of the respondents which was accrued to them and prayed for dismissal of the I.A.

6. The trial Court, after considering the material on record, dismissed IA No. 700 of 2017 on 26.06.2019 observing that the parties will sign on the verification that what is stated in the plaint is true and correct to the best of their knowledge and hence' the petitioner cannot contend that he does not know the pleadings in the plaint and that the proposed amendment will change the cause of action.

7. Aggrieved by the same, the present revision petition is filed. Heard Sri N. Ashwani