JUDGMENT :

1. Aggrieved by Ext.P7 order passed in I.A.No.4746/2016 in O.S.No.106/2011 of the Court of the Principal Subordinate Judge, Palakkad, the 12th defendant in the suit, has filed the original petition under Article 227 of the Constitution of India. The respondents 1 to 11 are the plaintiffs and the respondents 12 to 24 are the defendants in the suit.

2. The petitioner’s case, relevant for the determination of the original petition, is: The suit is filed by respondents 1 to 11, for a decree of partition. The respondents 1 to 11 have claimed that they are entitled to 13/27 shares, the first defendant is entitled to 3/27 shares, the second defendant is entitled to 4/27 shares, defendants 3 to 15 are entitled to 1/27 shares and the defendants 6 to 11 are entitled to 4/27 shares in the plaint scheduled property. The petitioner is residing in the house situated in the plaint scheduled property. The first defendant has alleged in Ext.P2 written statement that the petitioner does not have a right over the plaint scheduled property. The defendants 2 to 11 have in Ext.P3 written statement agreed for the partition. The petitioner has filed Ext.P4 written statement, inter-alia, contending that the plaint scheduled property is not partible. The suit was listed for trial on 09.12.2016. The fourth respondent was examined as PW1 and Exts.A1 to A5 were marked through him in evidence, and suit was adjourned for further evidence to 13.12.2016. Then, the 4th respondent filed Ext.P5 application, seeking leave to amend the plaint, alleging that certain omissions have crept in the plaint regarding the extent of the property. The application was opposed by the petitioner through Ext.P6 counter statement. The court below, by the impugned Ext.P7 order, has allowed Ext.P5. Ext.P7 is erroneous and wrong. Hence, the original petition.

3. Heard; Sri.R.Harishankar, the learned counsel appearing for the petitioner and Sri.A.R.Gangadas, the learned counsel appearing for the respondents 1 to 11.

4. The point is whether there is any error or illegality in Ext.P7 order.

5. On an analysis of the pleadings and materials on record, it is evident that the suit was listed for trial on 09.12.2016 and the 4th respondent was examined as PW1, and Exts.A1 to A5 were marked in evidence. Thereafter, the suit was adjourned to 13.12.2016, for the evidence of the defendants. It is at this stage that the 4th respondent filed Ext.P5 application, seeking leave to amend the plaint for the purpose of correcting the mistakes that have crept in the plaint regarding the extent of land and other ancillary matters. I have gone through the deposition of PW1, who in his cross-examination admitted the above anomaly. The respondents 1 to 12 have no case that the proposed amendment was not within their knowledge prior to filing of Ext.P5 application.

6. The proviso to Rule 17 of Order 6 of the Code of Civil Procedure, specifically provides that no application for amendment shall be allowed, after the commencement of trial, if the party cannot substantiate that the matter was not within his knowledge, despite exercise of due diligence.

7. In the case at hand, reading of Ext.P1 plaint, Ext.P5 application and the oral testimony of PW1, prove and establish that, the pleadings sought to be incorporated, by way of amendment, was well within the knowledge of the respondents 1 and 12. Thus, I am of the definite view that Ext.P5 application is hit by the Proviso to Rule 17 of Order 6 of the Code.

8. In the above legal and factual background, I hold that the impugned order is erroneous, improper and irregular and passed without adverting to the bar under the above statutory provision. Hence, the impugned order warrants to be interfered by this Court in exercise of the supervisory powers under Article 227 of the Constitution of India.

In the result, I allow the original petition in the following manner:-

(i) Ext.P7 order is set aside.

(ii) Ext.P5 application is dismissed.

(iii) The Court of the Pri