The delay in seeking amendment can be compensated by way of costs, and the court can invoke supervisory jurisdiction under Article 227 of the Constitution of India to set aside unsustainable orders.

ORDER :

This Civil Revision Petition is filed by the petitioner/ plaintiff under Article 227 of the Constitution of India, against the orders passed by the learned Senior Civil Judge, Puttur in I.A. No.119 of 2014 in O.S. No.76 of 2006 dated 15.10.2014, wherein and whereby, the learned trial Judge dismissed the petition filed by the petitioner/plaintiff under Order VI Rule 17 C.P.C., seeking amendment of the plaint for adding some more items in the plaint schedule properties.

2. The case of the petitioner/plaintiff before the trial Court in brief is that she filed suit for partition and separate possession of 1/5th share in the plaint schedule properties against the respondents, wherein she has shown four (04) items of immovable properties and recently she came to know that R1 R2/D1 D2, purchased the property out of joint family income and filed petition to amend the plaint schedule property to include those properties.

3. The respondent filed a counter before the trial Court denying averments in the affidavit of the petitioner. It is the contention of the respondent that 1st item of petition schedule property to an extent of Ac.2.55 cents in Sy. No.162/1C is the self-acquired property of respondent Nos.1 and 2, which they purchased under registered sale deed dated 08.08.1994 for valid consideration and since then they have been in possession and enjoyment of the same. They submit that the 2nd item of petition schedule property to an extent of 0.28 cents in Sy. No.182/7 is the self-acquired property of Mr Ramakrishnaiah, who purchased under registered sale deed dated 22.06.1997, which is the subject matter of appeal proceedings before the Hon’ble High Court and 3rd item of petition schedule property is site to an extent of Ac.0.02 11/12 cents in Sy. No.227, which is the property of respondent Nos.1 and 2, as they purchased the same under registered sale deed dated 11.04.1983 for valid consideration and since then they have been in possession and enjoyment of the same. The 4th item of petition schedule property to an extent of 0.05 cents in Sy. No.227 which is also purchased by respondent Nos.1 and 2, under registered sale deed dated 20.02.1982 and they have been in exclusive possession and enjoyment of the same. The respondents submits that as they worked in private companies, they purchased properties, out of their own income, which petitioner intended to include in the plaint schedule which is not permissible under law and the claim of the petitioner is also time barred. They pray to dismiss the petition.

4. After hearing both sides, learned trial judge dismissed the petition filed by the petitioner observing that the amendment which the petitioner sought is after the commencement of the trial and no reason is mentioned that in spite of her due diligence, petitioner could not sought for amendment, prior to the commencement of the trial. The learned trial Judge also relied on the ratio laid down by Hon’ble Apex Court in AIR 2009 SC 1433.

5. Aggrieved by the orders passed by learned trial judge, petitioner preferred the present Revision Petition stating that the order of the Court below is against the law probabilities of the case, which have to be set aside. She submits that trial Court ought to have seen that mere filing of the chief examination affidavit could not be treated as commencement of the trial. She prays to allow the petition.

6. I have heard the learned counsel for the petitioner.

7. The learned counsel for petitioner would submit that the trial of the suit has not yet been commenced as petitioner filed her chief examination affidavit as PW-1, but no documents are marked. He would further submit that as petitioner came to know recently that respondent has purchased petition schedule properties, out of joint family income, she intended to add those items in the plaint schedule to avoid multiplicity of litigation. He would further submit that if petitioner is not allowed to amend her plaint which will cause prejudice to h