Amendments to pleadings should be allowed to ensure substantial justice, provided they do not introduce a new case and are consistent with the original claim.

ORAL ORDER

Aggrieved by the orders passed on I.A.No.5 in O.S. No.8021/2017 dated 14.10.2019 by the XXVII Addl. City Civil and Sessions Judge, Bengaluru (CCH-9), the plaintiff is before this Court.

2. The plaintiff had filed the instant IA under Order VI Rule 17 to amend the paint. it is his case that he is the owner in position and occupation of the property site bearing No.123A, Assessment No.6, khata No.59 situated at Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk. At the time of filing of the suit, due to oversight and typographical error, the property number in the plaint in para No.2 in the line No.3 was wrongly mentioned as 121-A instead of 123-A and further, in the schedule property, western side boundary was wrongly mentioned as Conservancy and thereafter, site No. 160/2 instead of site No.160/2. Accordingly, they have filed the present application seeking amendment to the same. The Court had dismissed the application observing that on perusal of the entire records, it is clear that the suit of the plaintiff is one for permanent injunction against the defendant from interfering with the peaceful possession and enjoyment of the property. Already the issues are framed in the case and the case was posted for further chief examination of D.W.-1. At this juncture, this application is filed by the counsel for the plaintiff for amendment of the plaint as well as the boundary. As rightly contended by the counsel for the plaintiff pre trial amendment are normally allowed and any application filed after commencement of the evidence will not be allowed. In the present instance, already the matter was posted for cross- examination of D.W.-1. Further, the plaintiff in the amendment application sought for the change of the survey number as well as sought for the change of the boundary. If at all this application is allowed, certainly it will change the entire nature of the case and also once again additional issues have to be framed for the purpose of leading the additional evidence of the plaintiff. Accordingly, dismissed the application filed by the plaintiff. Aggrieved thereby, the plaintiff is before this Court.

3. Learned counsel appearing for the plaintiff submits that according to the plaintiff, he has purchased the property by way of a registered sale deed dated 12.02.2004. In the registered sale deed, the boundaries and the survey numbers are mentioned and he is asserting his title and possession to the property by virtue of the said sale deed. When it comes to the plaint, the said survey number & boundary was wrongly mentioned. Thereafter, they have filed an application for seeking amendment of the plaint. Learned counsel submits that if the said amendment is not allowed, it would cause lot of prejudice to the plaintiff and that aspect was not considered by the trial Court and had dismissed the application. He submits the order needs to be set aside.

4. Learned counsel appearing for the defendant submits that after defendant No.1 was cross examined, at that stage, this application is filed. Now by virtue of this amendment, they are altogether introducing a new case and it would change the entire nature of the suit and it would cause prejudice to the plaintiff. He submits that once when an application under Order VI Rule 17 is filed after the commencement of the trial, the burden lies on the plaintiff to show that in spite of due diligence, all these aspects were not brought to the notice of the Court. He submits that in the affidavit, he has not stated anything and without there being such a pleading and for the lapses on the part of the plaintiff, the defendant cannot be punished and it would cause lot of hardship and prejudice to the defendant. He had relied on the judgment of the Apex Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and others, Reported in (2020)11 SCC 549. and he has relied on paragraph No.8, which reads as under:

8. There being no finding by the Court that the Court is sati