Amendments to pleadings in civil suits are permissible to clarify share entitlements, but time-barred claims cannot be introduced post-trial commencement.

ORAL ORDER

Aggrieved by the order passed in I.A.No.12 in O.S.No.330/2011 dated 04.11.2017, by the Principal Civil Judge, Davanagere, the plaintiffs are before this Court.

2. It is the case of the plaintiffs that they have filed a suit seeking partition and separate possession and to allot 1/5^th share in the suit schedule properties. The suit is filed in the year 2011. In the year 2016, plaintiff No.2 had filed an I.A. stating that though in the pleadings they have stated about the sale deed i.e., executed in favour of defendant Nos.2 and 3 by defendant No.1 in respect of the joint family property in the year 2001. However, they have not sought the relief that the said sale deed is not binding on them. Further, instead of mentioning that the share she is entitled to is 4/5^th share, it is stated that she sought for 1/5^th share as such they come up with an application seeking amendment.

3. The Trial Court by order impugned had dismissed the said application. While dismissing the said application, the Trial Court had observed that the proposed amendment regarding cancellation of sale deed is time barred plea. It is settled principle of law that time barred plea cannot be permitted to be added by way of an amendment. Relying on the judgment of this Court in case of B.S. Prakash Vs. Gnaneshwar Rao and Others, [2016(4) KCCR 2955], the Court had held that the amendment cannot be allowed and accordingly, dismissed the application.

4. Learned counsel appearing for the plaintiffs/ petitioners submits that by way of this amendment they are not introducing any other new facts to the pleadings, in fact though they have stated all the facts, only the relief was not sought. It is submitted that if this amendment is allowed, no prejudice would be caused to the defendants. This aspect was not considered by the Trial Court. She relied on the judgment of this Court in case of Vadde Sanna Hulugappa and others Vs. Vadde Sanna Hulugappa and others, [ILR 1998 Karnataka 2127]. Relying on this judgment, learned counsel submits that whether the relief of cancellation of sale deed is sought or not, it will not have a binding in a suit for partition. It is also argued that even whether the party had sought for 1/5^th share or 4/5^th share, basing on the entitlement of the parties, the Court can grant such a relief. It is submitted that without considering all these aspects, the Trial Court had dismissed the application.

5. Learned counsel appearing for the respondents/ defendant Nos.2 and 3 submits that they have purchased the property from the defendants in the year 2001. The suit is filed in the year 2011. It is submitted that this being a registered document as per Section 3 of the Transfer of property Act, it is very much in the constructive notice of the plaintiffs and it is barred by limitation. Further, during the course of evidence, when they have taken a plea with regard to the maintainability of the suit, at that time to cover up the latches, the present application came to be filed. He submits that by way of an amendment the time barred reliefs cannot be permitted. Further, he submits that after the amendment to Order 6 Rule 17 of CPC, the duty is cast on the party to plead that in spite of due diligence the facts which they sought to place before the Court by way of amendment could not be brought to the notice of the court. In this case no such averment is made and just like that they have come up with this amendment. It is submitted that party cannot be permitted to amend the plaint. He had relied on the judgment of Apex Court in case of Basavaraj Vs. Indira and others, [(2024) 3 SCC 705] where the Hon’ble Apex Court observed as follows:

10. The proviso to Order 6 Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even