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2019 Supreme(Kar) 1943
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
S.G. PANDIT, J.
Shri.Hari S/o Govind Gundkal – Appellant
Versus
Shri.Govind S/o Yallappa Gundkal – Respondent
Writ Petition No.108596 of 2019 (GM-CPC)
Decided On : 03-07-2019
Advocate Appeared:
For the Appellant :Sri.Naveen R Melinamani, Advocate And Sri.Kushal Bolmal, Advocate
Headnote:
Civil Procedure Code - Order 6 - Rule 17 - Constitution of India, 1950 - Article 227 - Possession of suit schedule properties - Trial Court - Petitioner states that he was originally defendant No.3 and he was transposed as second plaintiff by order - When he was transposed as plaintiff No.2 suit was at stage of evidence of plaintiff - When matter stood at the stage of cross-examination of DW.1 petitioner/plaintiff No.2 filed an application seeking amendment under Order 6 Rule 17 of CPC - That in suit schedule ‘B’ properties in agricultural lands defendant No.1 has got half share including plaintiff and defendant No.2 to 6 and half share remain to the share who is aunt of plaintiff and defendants No.2 to 6 who is wife of defendant No.1’s brother and as such said is residing separately and got half share separately out of schedule ‘B’ properties and hence she has not made party to this suit – Held, Learned counsel for petitioner and on perusal of writ papers court find no error or perversity in order passed by the trial Court rejecting I.A. for amendment - Suit is admittedly at stage of evidence of DW.1 - If amendment application is filed subsequent to commencement of trial party who seeks amendment shall satisfy Court with regard to amendment sought for and in spite of due diligence he could not seek amendment earlier - Order 6 Rule 17 of CPC provides for amendment of pleadings at any time of suit but if the application is filed subsequent to commencement of trial party who seeks amendment shall satisfy Court with regard to his due diligence - In present case petitioner has failed to show due diligence and has not stated any reason why the amendment application could not be filed earlier – Further from amendment sought it could be seen that those averments are not necessary for proper adjudication of question involved in the suit - It is seen that is not at all party to suit - In absence pleading against her is not permissible - On perusal of the existing averments in plaint it is noted that originally a stand has been taken that in suit schedule B properties which are agricultural lands defendant No.1 along with plaintiff and defendants No.2 to 6 has share and remaining share belongs to who was wife of brother of defendant No.1 - Further the averments are to the effect that is residing separately and has share in suit schedule B properties separately - However in proposed Para sought to be added averments are to effect that by virtue of compromise decree the item properties in suit schedule ‘B’ have exclusively fallen to the share of defendant No.1 - Thus clearly the proposed amendment has effect of taking away the earlier stand taken in plaint and in its place introducing a new stand which is inconsistent with earlier one - At this stage of suit cross examination of DW.1 in a matter of year such an amendment which is inconsistent with the earlier stand and not merely either clarificatory or mere correction of typographical error cannot be allowed as it will cause prejudice to defendants - By no stretch of imagination it can be said that proposed amendment is only intended to correct a typographical error – Therefore court of considered opinion that is devoid of merits and therefore is liable to be dismissed with costs - Writ petition is rejected
ORDER
1. The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 16.03.2019 on I.A.No.28 filed under Order 6 Rule 17 of CPC in O.S.No.1064/2010 on the file of the Prl. Civil Judge and JMFC, Belagavi.
2. The petitioner states that he was originally defendant No.3 and he was transposed as second plaintiff by order dated 23.03.2016. When he was transposed as plaintiff No.2 the suit was at the stage of evidence of plaintiff. When the matter stood at the stage of cross-examination of DW.1, the petitioner/plaintiff No.2 filed an application seeking amendment under Order 6 Rule 17 of CPC. The plaintiff sought amendment as follows:
“(1) At para No.5, after 5th line the below mentioned sentences may kindly be deleted
“That in the suit schedule ‘B’ properties i.e., in agricultural lands, the defendant No.1 has got half share including the plaintiff and def endant No.2 to 6, and half share remain to the share of Umabai W/o Bharma Gundkal, who is the aunt of the plaintiff and defendants No.2 to 6, who is the wife of defendant No.1’s brother and as such the said Umabai is residing separately and got half share separately out of schedule ‘B’ properties and hence she has not made party to this suit.”
By deleting above mentioned lines in its place the below mentioned sentences may kindly be inserted.
“The one Smt.Umabai W/o Bharma Gundakal, who is defendant No.1’s brother’s wife had filed O.s.374/2010 f or the relief of partition and separate possession in respect of suit schedule properties. The said suit came to be compromised between the defendant No.1 and his brother’s wife. Accordingly, the compromise Decree passed in the said suit on 09.04.2009. In the said compromised decree the item No.1 to 6 of this suit schedule ‘B’ properties are exclusively fallen to the share of defendant No.1. Therefore item No.1 to 6 of this suit schedule ‘B’ properties are joint family and the ancestral properties of plaintiffs and defendants. The item No.3 of suit Schedule ‘A’ properties and item No.7 to 9 of this suit schedule ‘B’ properties are purchased out of joint family income after passing of decree in O.S.No.374/2010.
Therefore these properties also joint family properties of plaintiffs and defendants.”
(2) In schedule ‘A’ after Sl.No.3 following property may kindly be inserted.
4 - House properties bearing plot No.1A and 1C respectively ad-measuring 788 Sq.Ft. and 993 Sq.Ft. out of R.S.No.129/2, situated at Ghade Marg, Sambhaji Nagar, Vadagaon, Belagavi.
(3) In schedule ‘B’ 4th column, i.e., extent column may kindly order to be deleted.
(4) In schedule ‘B’ at Sl.No.3 in location column the Symbol “may kindly be deleted in its place the word “Shahapur” may kindly be inserted.
(5) In schedule ‘B’ at Sl.No.4 in area column the figure “2-29” may kindly be deleted in its place the f igure “1-06” may kindly be inserted.”
3. It is stated that there are wrong pleadings and hence, the plaintiff intends to amend the plaint. It is stated that if the amendment is allowed it would not change the nature of the suit nor cause of action would change. The defendants filed their objection stating that the plaintiff is seeking amendment at the fag end of the litigation and he has not made out any case for allowing the amendment. It is also contended in the objection that to fill up the lacuna in the suit, the present application is filed. The trial Court considering the contentions of the parties by order dated 16.03.2019 rejected I.A. for amendment. Aggrieved by the same, the petitioner/plaintiff No.2 is before this Court in this writ petition.
4. Heard the learned counsel for the petitioner and perused the writ papers.
5. Learned counsel for the petitioner/plaintiff No.2 would submit that the amendment sought is very much necessary for proper adjudication of the question involved in the suit and he submits that one Smt.Umabai has already taken her share and to that extent the plaint needs to be amended. He further submits that t
