The necessity of timely filing an application for amendment and the consideration of potential prejudice to the opposing party.

JUDGMENT

1. Plaintiff in O.S.No.25630/2014 on the file of Principal City Civil and Sessions Judge, Bengaluru has filed this writ petition challenging the correctness of the order dtd. 2/8/2022, by which, the trial Court rejected an application filed under Order VI Rule 17 of Code of Civil Procedure to amend the plaint.

2. The suit in O.S.No.25630/2014 was filed for declaration of title and recovery of possession of the suit schedule property. The suit was contested by the defendant, based upon which, issues were framed and the case was set down for trial. At the stage of addressing arguments on the suit, the plaintiff filed an application under Order VI Rule 17 of CPC to amend the plaint schedule to describe the boundaries properly. Said application was rejected by the trial Court as being belated and that the plaintiff was not diligent in filing the application. Being aggrieved by the said order, present writ petition is filed.

3. Learned counsel for the petitioner submitted that amendment is only to describe the boundaries so as to give clarity to the pleadings. He submitted that defendant would not be prejudiced if the amendment is allowed. He further submits that the inconvenience if any caused to the defendant could be adequately compensated.

4. Learned counsel for the defendant on the other hand submitted that plaintiff had mentioned Western- Northern boundary as private property, while in the application for amendment had mentioned it as "quarry". He therefore, submits that plaintiff has intended to introduce a different property than was originally filed. He therefore submitted that the application is not only filed belatedly but no reasons are assigned for change in the boundaries. He further submitted that allowing this application would result in change in the cause of action.

5. I have considered the submissions made by the learned counsel for the parties.

6. Suit was filed for declaration and recovery of possession in respect of 'B' schedule property which measured 7.90 meters X 10 meters and was bounded on the East by : private property, West by : private property North by : private property and South by : 'B' schedule property. However, by way of amendment, petitioner desires to introduce the eastern boundary as : property No.495/D, Western and North boundaries as : quarry and Southern boundary as : property bearing No.497/G. It cannot be denied that the plaintiff has slept over her rights in not filing the application in time. The affidavit accompanying the application is as bald as it could be. Plaintiff has not explained in proper terms as to why the application for amendment was not filed earlier. It is well settled that an application for amendment of pleadings have to pass the twin test namely, that the application is necessary for the complete adjudication of the dispute between the parties and despite exercise of due diligence, the party could not have sought such amendment.

7. In the case on hand, except the assertion that the amendment sought for is necessary, plaintiff has not indicated that amendment could not be sought earlier. In that view of the matter, amendment though is necessary for the adjudication of the dispute and it was not filed within time. Having regard to the conduct of the plaintiff in waiting till the penultimate stage to seek for amendment, the defendant would be put to inconvenience, and therefore, it is appropriate to the defendant is adequately compensated. Having regard to the lapse of time, the amendment should be given effect to from the date of its filing and shall not relate back to the date of filing the suit.

In that view of the matter, the writ petition is allowed. Impugned order passed by the trial Court is set aside. Application filed by the plaintiff under Order VI Rule 17 of CPC is allowed, subject to payment of cost of Rs.15,000.00 payable by the plaintiff to the defendant on the next date of hearing before trial Court. The defendant is at liberty to file additional