The petitioners, defendants in O.S.No.364/2013 on

the file of the Principal Civil Judge and JMFC, Magadi, are

before this Court aggrieved by order dated 01.08.2023

rejecting I.A.No.10 filed under Order VI Rule 17 of the

Code of Civil Procedure, 1908 (for short 'CPC') to amend

the written statement.

Heard Smt. G.K.Sreevidya, learned counsel for

Sri. T.N.Viswanatha, learned counsel for the petitioners

and perused the writ petition papers.

The suit of the respondents-plaintiffs is one for

declaration to declare that the plaintiffs are the absolute

owners of the suit schedule properties and consequently

for permanent injunction. It is submitted that the written

statement was filed by the petitioners-defendants on

04.07.2014. When the suit was at the stage of cross-

examination of DW.1, the petitioners-defendants filed

I.A.No.10 under Order VI Rule 17 of CPC to add certain

facts. Learned counsel for the petitioners further submits

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that proposed additional facts in the application for

amendment would be necessary and would be required for

proper adjudication of the dispute between the parties.

Learned counsel would further submit that facts with

regard to the sale deeds dated 09.01.1981, 27.08.2001,

and vibhaga pathra dated 10.05.1990 and certain revenue

proceedings was not within the knowledge of the

petitioners and on coming to know all those proceedings,

the petitioners have come up with an application for

amendment of written statement. Further, learned counsel

referring to the affidavit enclosed to I.A.No.10 would

submit that the counsel who was appearing for the

petitioners earlier had not included the averments, which

the petitioners intend to add by way of amendment and

only on engaging a new counsel, the petitioners were

advised to file amendment application to include certain

facts. Thus, learned counsel prays for allowing the writ

petition

and

consequently

to

allow

I.A.No.10

for

amendment of written statement.

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Having heard the learned counsel for the

petitioners and on perusal of the writ petition papers, I am

of the view that no ground is made out to interfere with

the impugned order passed by the trial Court. Moreover,

the impugned order is neither perverse nor suffers from

material irregularity so as to interfere.

The suit is of the year 2013. When the suit was

set down for cross-examination of DW.1, I.A.No.10 is filed

under Order VI Rule 17 of CPC, to amend the written

statement, to include paragraph Nos.9 to 14 to state with

regard to partition deed dated 10.05.1990 and sale deeds

dated 09.01.1981 and 27.08.2001. The averment with

regard to partition deed and sale deeds are from the year

1981 to 2001. The suit is filed in the year 2013. The

present application for amendment is filed in the year

2023.

No

explanation

is

offered

in

the

affidavit

accompanying the application to explain the delay in

making the present amendment application and also to

explain the due diligence on the part of the petitioners as

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to why the petitioners-defendants could not bring the

amendment earlier.

6.

Order

VI

Rule

17

of

CPC

provides

for

amendment of pleadings. In terms of the said provision

the Court may at any stage of the proceedings allow either

of the parties to alter or amend pleadings in such manner

and on such terms, as may be just and necessary for the

purpose of determining real questions in controversy

between the parties. But the proviso to sub-rule puts

restriction on the Court, while considering the amendment

application

after

commencement

of

trial.

If

the

amendment sought is after commencement of trial, unless

the court is satisfied with regard to due diligence that the

party

could

not

have

raised

the

matter

before

commencement of trial, the Court would not get

jurisdiction

to

allow

such

application.

Normally,

amendments are allowed to do substantial justice and to

minimize litigations.

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7.

Unless

the

Court

is

satisfied

with

the

explanation

towards

due

diligence

in

a

post

t