AJIT J. GUNJAL, J.

( 1 ) THIS petition is by the defendant No. 1 (c) in O. S. No. 10298/ 91 on the file of the 28th Addl. City Civil Judge, Bangalore. The said suit was instituted by respondents 1 to 8 for declaration that they are the absolute joint owners of the suit schedule property being the legal heirs of venkatesh alias Venkatesh Murthy and also consequential relief of injunction restraining the defendants or their agents, servants from interfering with the peaceful possession and grant such other reliefs as deemed fit by the Court. The suit property is Sy. No. 128 of Hallada Zamini, horamavu village, K. R. Puram Hobli, Bangalore South Taluk. The pleadings of the respondents can be summarised as follows:

( 2 ) IT is the case of the plaintiffs-respondents that respondents 1 and 2 are the parents of one venkatesh and plaintiffs to 8 as brothers and sisters of said Venkatesh. it is their case that the said Venkatesh was born in 1954. When the said Venkatesh was 7 years old, respondent No. 1 purchased the property Sy. No. 128 in his name which is the subject matter of the present proceedings. They would further contend that right from the time of birth the said Venkatesh was mentally incapacitated and unsound. He was under constant treatment for the said mental disorder and the plaintiffs had to take care of the said Venkatesh since he was incapable of comprehending things and look after himself. Due to the said infirmity, he had a very poor growth physically. In the circumstances he had to be taken care of by the others. It is their further case that some time in the year 1975 the said Venkatesh disappeared from the house and notwithstanding serious efforts made by the plaintiffs, he could not be traced. Since he was not traced it was presumed that he was dead and he has not returned ever since the date of disappearance. Suffice it to say that the plaintiffs claim certain rights in respect of the suit property through this Venkatesh.

( 3 ) THE defendants have entered appearance and contested the proceedings, inter alia, contending that the suit itself is not maintainable and the plaintiffs are not entitled for the relief which they have sought. The matter went to the trial. When the matter was set down for evidence of the defendants, an application came to be filed. The said application was under Order 6 Rule 17 of CPC seeking amendment of the pleadings so as to incorporate certain additional pleadings and also certain corrections of the survey number. The said application was seriously opposed by the defendants, inter alia, contending that the suit having been instituted in the year 1991, it was not open for the plaintiffs at this point of time more so when the matter is set down for trial that too for the evidence of the defendants to make such an application. The application which is filed at a belated stage is liable to be rejected. Another contention raised before the learned Trial Judge was that the Code Civil Procedure having come into force the application is not maintainable after the matter is set down for trial. The Learned Trial Judge however taking into consideration the material on record as well as the proposed amendment was of the opinion that the said application is to be accepted and the proposed amendment is to be permitted. The impugned order passed by the Learned Trial Judge allowing the said application for amendment is to be found at Annexure-A.

( 4 ) MR. G V. Shantharaju, Learned Senior Counsel, appearing for the defendant has raised two fold contentions-one is, reiterting that the Code of Civil Procedure having been amended and after the amendment any application under Order 6 Rule 17 for amending the pleadings is not permissible in view of the proviso. He would further submit that by the said amendment new plea is taken. He would also further submit that after the plaintiffs' evidence was over and when the matter is set down for the defendants' evidence, the present application is filed. He wou

Click Here to Read the rest of this document