The court emphasized the importance of due diligence in applications for amendment and considered the potential prejudice to the opposing party in property dispute cases.

JUDGMENT :

1. The learned counsels for the parties are heard with their consent for final disposal in the light of the assertion that the suit in O.S. NO. 5507/2009 is set down for final arguments. The petitioners are the plaintiffs in O.S. No.5507/2009 on the file of the XXVII Additional City Civil and Sessions Judge, Bengaluru [for short, 'the civil Court']. The petitioners have impugned the civil Court's order dtd. 11/8/2021, and the civil Court by this impugned order has dismissed the petitioners' application under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short 'CPC'].

2. The petitioners have continued the suit in O.S. NO. 5507/2009 filed by the original plaintiff, Smt. Jayamma, for declaration of title and mandatory injunction for the property described as measuring 15 feet x 20 feet and bearing No.187, Bhakshi Garden, Cottonpet Main Road, Chickpet, Bengaluru with certain boundaries [the subject property].

3. The petitioners' case is that the original plaintiff's brother, late Shama, who is now represented by the fourth respondent, purchased the subject property comprised in a larger extent under the sale deed dtd. 30/7/1976 and gifted a portion thereof (the subject property) in favour of the original plaintiff under the Gift Deed dtd. 6/8/1984. There was no dispute about the respective possession or the title until the demise of late Shama. However, on his demise, the fourth defendant, his wife, obtained khata for the larger property including the subject property and hence the suit. The fourth respondent has resisted the suit inter alia disputing the description of the subject property in the plaint. One of the specific grounds urged by the fourth respondent is that the suit must be dismissed because of the mis-description of the subject property.

4. The parties have lead their evidence and when the suit is listed for arguments, the petitioners have filed the present application for amendment. The petitioners, by this application propose to correct the western and the northern boundary of the subject property asserting that the error in describing these two boundaries was noticed after the suit is listed for arguments and the error in the description of the subject property is an accidental slip. The application is resisted asserting inter alia that the proposed amendment would enable the petitioners to resile from the statements made in the cross examination in the light of the specific Issue as regards the burden on the petitioners to establish the existence of the subject property as described by them in the plaint.

5. The civil Court has rejected the petitioners' application observing that the fourth respondent's defense is specific and the petitioners cannot assert that they were not aware of the error until the suit was listed for arguments. The civil Court has also opined if the application is allowed, there will be change in the context of the dispute and the trial in the suit will have to be re-commenced, and that the petitioners are not bona fide in their application. The civil Court has further opined that the petitioners do not, in filing the application, satisfy the test of due diligence as required for considering the application for amendment after the trial is commenced.

6. The learned counsel for the petitioners submits that the central question for consideration in the suit is whether the petitioners are able to establish the existence of the property as described by them in the context of their case that the subject property is part of the larger property purchased by late Shama, and he has transferred the subject property in favour of his sister, the original plaintiff, Smt. Jayamma. The amendment will not change this central question, and the learned counsel for the petitioners also submits that the petitioners do not propose to lead any further evidence and the suit could be heard and disposed of without further evidence.

7. The learned counsel for the contesting fourth respondent submit