The First Appellate Court erred in allowing an amendment of the plaint after extensive litigation, disregarding previous findings on the legal status of the parties involved.

JUDGMENT :

H.P.Sandesh, J.

Heard the learned counsel appearing for the appellants and the learned counsel for respondent Nos.3 and 10.

2. This MSA is filed against the order passed by the First Appellate Court in R.A.No.5/2023 wherein the First Appellate Court allowed I.A.No.1 filed by the appellant/plaintiff under Order VI Rule 17 of CPC and remitted the matter to the Trial Court with a direction to permit the plaintiff for amendment in the plaint as sought in I.A.No.1 and to afford opportunity to defendant Nos.11 to 15 to file the written statement and additional written statement if any and provide an opportunity to both the parties to adduce additional evidence.

3. This order is under challenge before this Court. The counsel for the appellants would vehemently contend that the First Appellate Court is not justified in entertaining an application for amendment of the plaint. The counsel would vehemently contend that no application is filed under Order 21 Rule 27 of CPC and also the counsel would vehemently contend that while remanding the matter, the Court has to keep in mind Order 41 Rule 23, 23-A and 25 of CPC and only if satisfies, then remand could be made. The counsel would vehemently contend that filing an application for permitting the amendment in the regular appeal that too after lapse of over two decades of lis between the parties is an erroneous and the First Appellate Court ought not to have allowed the said application. The counsel would vehemently contend that the suit was filed in the year 1992 and the matter was remanded twice and in both the occasions, the suit filed by the plaintiff was dismissed and being aggrieved by the dismissal of the suit, R.A.No.5/2013 is filed. The counsel would vehemently contend that when Sannamma passed away, an application was filed under Order I Rule 10(2) of CPC before the Trial Court and the Trial Court held an enquiry and given the definite finding that they are the legal representatives of Sannamma and continued to proceed in the matter. When such finding was given regarding relation between the legal representatives is concerned, same cannot be agitated once again by filing an application under Order VI Rule 17 of CPC before the First Appellate Court and the very approach of the First Appellate Court is erroneous and the First Appellate Court ought not to have remanded the matter. The counsel would vehemently contend that no point for consideration was considered by the First Appellate Court while remanding the matter and only entertaining the application filed under VI Rule 17 of CPC that too without production of any documents and only on mere say of pleading in the application for amendment, the same was allowed hence, the very approach of the First Appellate Court is erroneous and it requires interference.

4. The counsel for respondent Nos.3 and 10 who are the defendants before the Trial Court would vehemently contend that the order passed by the Trial Court in O.S.No.129/1992 allowing the application filed under Order I Rule 10(2) read with Section 151 of CPC is challenged before this Court by filing the writ petition and the writ was dismissed affirming the order. However, made an observation in paragraph 2 that the plea of the applicants is that the deceased was the adopted son of the defendant Smt. Sannamma. Whereas the contention of petitioner is that Ninge Gowda was only a fostered son and since the law does not recognize the fostered son, his legal representatives cannot be impleded as defendants.