ORDER :

S.R. Krishna Kumar, J.

1. This petition is directed against the impugned order dated 01.08.2015 passed by the II Civil Judge and JMFC, Mysuru (for short "trial Court") in O.S. No. 231/2010, whereby the application filed by the petitioner under Order VI, Rule 17 CPC for amendment of the plaint was partly allowed by the trial Court.

2. Heard learned Counsel for the petitioner and learned Counsel for respondent Nos. 1, 2 and 4 and perused the material on record.

3. The material on record indicates that it is not in dispute that the petitioner herein filed the aforesaid suit O.S. No. 231/2010 against the respondents herein for partition and separate possession of his share in the suit schedule properties and for other reliefs. The said suit having been contested by the respondents-defendants, the matter was posted for evidence. At that stage, the petitioner filed an application under Order VI, Rule 7 CPC for amendment of the plaint seeking permission to add three additional items of properties along with the existing suit schedule properties. The said application having been contested by the respondents, the trial Court partly allowed the application permitting the petitioner to amend the plaint by inserting item 2 among with the properties mentioned in the application but rejected the application in so far as items 1 and 3 are concerned aggrieved by which petitioner is before this Court by way of the present petition.

4. After having heard learned Counsel for both parties and upon perusal of the material on record including the impugned order, I am of the considered opinion that the trial Court committed an error of law and jurisdiction occasioning failure of justice in rejecting the application filed under Order VI, Rule 17 CPC, in so far as items 1 and 3 of the suit schedule properties are concerned on the sole ground that the plaintiff had not placed sufficient material to establish the suit items 1 and 3 are also joint family properties. In this context it is relevant to state that at the stage of considering the application for amendment of pleadings, it is not open for the Court to go into the merits/demerits of the rival contentions with regard to their respective proprietary/possessory rights over the properties and all that the Court has to adjudicate is whether the proposed amendment is essential/necessary for the purpose of deciding the issues in controversy between the parties..

5. It is not in dispute that petitioner contended that all the three items of property sought to be inserted/included by way of amendment were joint family properties, which contention was seriously disputed by the respondents. Under these circumstances, the question as to whether the properties sought to be included by way of an amendment, are joint family properties or not, has to be necessarily decided during trial and this issue cannot be decided at the time of deciding the application for amendment of the plaint. Under these circumstances, I am of the considered opinion that the impugned order rejecting the application and refusing amendment in so far as items 1 and 3 are concerned, has occasioned failure of justice warranting interference of this Court in exercise of powers under Article 226 of the Constitution of India.

6. In the result, I pass the following:

ORDER

i. The petition is hereby allowed.

ii. The impugned order dated 01.08.2015, passed by the II Civil Judge and JMFC, Mysuru in so far as it relates to rejecting the application filed under Order VI, Rule 17 CPC filed by the petitioner in respect of items 1 and 3 mentioned in the application is hereby set aside and consequently, the said application in respect of all the three proposed items of property is hereby allowed.

iii. It is needless to state that no opinion is expressed on the merits/demerits of the rival contentions with regard to whether the other properties are joint family properties/joint properties and whether the same are partible or not.

iv. Liberty is reserved in