A.N. Venugopal Gowda, J.

1. The respondent Nos. 1 to 3, as the plaintiffs, have filed O.S. No. 2422/2006, in the City Civil Court, Bengaluru, to pass a decree of partition and separate possession against the petitioners and respondent Nos. 4 and 5 herein/defendants. Written statement contesting the suit having been filed, after raising of issues, trial has commenced. At the stage of cross-examination of PW. 2, I.A. No. 5 was filed by defendant Nos. 1 to 9, under Order 6, Rule 17 r/w Section 151, CPC, to permit the amendment of the written statement in the manner proposed. Said application was opposed by the plaintiffs. The learned Trial Judge finding the application to have been filed after a long lapse of time of filing the written statement and after commencement of trial and being of the view that the proposed amendment introduces a new case, contradicting and nullifying the plea taken in the original written statement, and is likely to cause prejudice to the plaintiffs, has passed an order of dismissal on 21.02.2014 vide Annexure-F. This writ petition was filed to set aside the said order and permit the amendment of the written statement, as proposed in I.A. No. 5. Heard the learned advocates appearing for the parties and perused the petition.

2. Written statement was sought to be amended by incorporating an additional pleading to the following effect:

"Sri. H. Honappa has executed the will dated 15-06-2000 by bequeathing the plaint schedule "A" and "B" properties in favour of the first, fourth, fifth, seventh and eighth defendants, as such they are succeeded to the plaint schedule "A" and "B" properties according to the will executed by Sri. H. Honappa. The said will got to the knowledge of these defendants only when Sri. P. Krishnappa, son of Sri. Papaiah told about the execution of the said will to these defendants somewhere in the month of May, 2013. As such the plaintiffs do not have any right, title and interest over the plaint schedule "A" and "B" properties."

3. Proposed amendment was sought to be incorporated with reference to an alleged Will dated 15.06.2000, said to have been executed by H. Honappa, S/o. Late Hanumantha Rao, bequeathing his estate.

4. It is trite that insofar as permitting the amendment of written statement is concerned, the rigid principles which are ordinarily applied in the case of amendment of the plaint and not applied. The defendant is entitled to take alternate plea, without resiling from any positive admission in the pleading filed earlier.

5. No doubt, I.A. No. 5 was filed after commencement of the trial and hence, the proviso under Rule 17 of Order 6 is attracted. Hence, the applicants/defendants should show diligence. However, if the proposed amendment is found to be necessary to decide the real question in controversy and minimize the litigation between the parties, the same can be allowed. In Rajesh Kumar Aggarwal and others v. K.K. Modi and others, (2006) 4 SCC 385: (AIR 2006 SC 1647), while emphasizing on the underlined principles of Order 6, Rule 17, CPC, it has been held as follows:

"15. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The provision enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial.

16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

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