KUMAR RAJARATNAM, J.

( 1 ) THE petition is taken up with the consent of parties.

( 2 ) THE petitioner is the plaintiff in o. s. No. 969 of 1989 on the file of the principal civil judge, junior division, shimoga. Admittedly, the suit was filed in the year 1989. The petitioner sought for amendment of the plaint in la. No. Xviii. The trial court dismissed the application for amendment on the ground that it was belated. Aggrieved by the Order of the trial court in la. No. Xviii, the petitioner-plaintiff has preferred this crp.

( 3 ) THE plaintiff filed a suit for declaration to the effect that the sale deeds executed in favour of sugandaraj shetty and hanumappa is not binding upon the plaintiff and prayed for cancellation of the sale deeds and for consequential injunction restraining the defendants from interfering with the plaintiff's possession. It was submitted that by mistake the kharab portion of 1 acre 8 guntas was not included in the prayer of the plaint and also in the schedule. The kharab portion of 1 acre 8 guntas was in sy. No. 122 and the same survey number was divided into 122/1 and 122/2. The said kharab portion comes in sy. No. 122/1. It was submitted that reference to this land consisting of 1 acre 8 guntas in sy. No. 122/1 was clearly mentioned in the plaint at paragraph 5. However, it was not included in the schedule by oversight. It is in these circumstances, the petitioner sought to amend the plaint.

( 4 ) THE learned counsel for the respondent 6, Mr. Jayakumar s. Patil submitted that the amendment of the plaint has been sought for after elapse of nine years. He further submitted that the matter is slated for arguments and the whole case will have to be reopened if the amendment is allowed. He further submitted that the reasons assigned by the trial court in declining to amend the plaint is perfectly in Order and does not require interference while exercising powers under Section 115 of the CPC.

( 5 ) NO doubt the amendment sought for has come after a lapse of nine years. However, it has to be borne in mind that the amendment sought for has already been mentioned in the plaint and by sheer oversight the plaintiff did not correlate the averments in the plaint schedule.

( 6 ) THE learned counsel for the petitioner relied on a judgment of the Supreme Court in Nair Service Society Limited v K. C. Alexander and others. The Supreme Court in the said case has permitted the amendment of the plaint at the stage of an appeal as denial of such amendment would only cause multiplicity of proceedings and injustice. The Supreme Court pronounced on the subject in the following words:

( 7 ) I have carefully considered the submissions of the learned counsel for the petitioner and the learned counsel for the respondent 6. I feel that since there has been an interim stay of the proceedings before the trial court during the pendency of the crp and taking into account that the crp has been pending since 1997, it would be better for both parties if the amendment is allowed, so that there will be an opportunity both to plaintiff and the defendant to put forward their case before the trial court. The alternative would be to drive the plaintiff to file a separate suit, which in the facts and circumstances of the case, would only add to the litigation.

( 8 ) IN that view of the matter, the crp stands allowed. The Order passed in la. No. Xviii in o. s. No. 969 of 1989 on the file of the principal civil judge, junior division, shimoga, is set aside and the application for amendment is allowed. However, the crp will have to be allowed on terms both in this court as well as in the trial court. The petitioner-plaintiff is directed to pay a sum of Rs. 500/- as costs in the High Court and the sum of Rs. 1,000/- in the trial court. The amounts shall be paid to their respective counsel on obtaining a receipt from the counsel.

( 9 ) THERE will also be a direction directing the trial court to dispose of the trial after carrying out the amendment as e

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