ORDER

This petition by defendant Nos. 7 and 8 in O.S.No.168 of 2002 is directed against the impugned order dated 12.09.2023 passed by the learned Principle Civil Judge and JMFC, Kundapura, whereby the application IA No.10 filed by respondent No.1-plainitff under Order VI Rule 17 of CPC, seeking amendment of the plaint by incorporating additional prayer as well as corresponding pleadings in the plaint was allowed by the Trial Court. 2. Perusal of the material on records will indicates that respondent No.1-plainitff instituted the aforesaid suit for partition and separate possession of their alleged share in the suit schedule properties. The said suit was initially decreed in favour of the plaintiff vide judgment and decree dated 24.01.2008. Aggrieved by the same, the defendants preferred an appeal in R.A.No.15 of 2008, which was set aside by the First Appellate Court and remitted back the matter to the Trial Court for reconsideration in accordance with law.

3. The said order of remand was challenged before this Court in M.S.A.No.31 of 2019 which was dismissed by this Court vide order dated 01.12.2021.

4. Subsequently, since the petitioners herein impleaded as additional defendants to the suit, respondent No.1-plainitff filed the instant application seeking amendment of the plaint averments, prayer and schedule. The said application having been opposed by the petitioners, the Trial Court proceeded to pass the impugned order allowing the application, aggrieved by which the petitioners are before this Court by way of the present petition.

5. Learned counsel for the petitioners submits that respondent No.1-plainitff had knowledge about the petitioners and the properties which they seek to include by way of amendment at the time of filing the suit itself and having not included the same at the time of institution of the suit, the proposed amendment is barred by limitation, the same would have the effect of taking away the valuable right in favour of the petitioners by lapse of time. It is therefore submitted that the impugned order allowing the time barred amendment is illegal and arbitrary and the same deserves to be set aside.

6. Per contra, learned counsel for the respondents submits that there is no merit in the petition and the same is liable to be dismissed.

7. On perusal of the impugned amendment, it will indicate that after remand by impleading the petitioners herein, respondent No.1-plaintiff seeks to introduce certain averments, prayers and properties in relation to the petitioner herein. While allowing the proposed amendment, the interest of the petitioners can be adequately safeguarded by directing that the proposed amendment shall not relate back to the date of the suit but can be reckoned/ considered from the date of filing the application, as held by the Hon'ble Apex Court in the case of SAMPATH KUMAR v/s AYYAKANNU AND OTHERS1 and L.C. HANUMANTHAPPA v/s H.B. SHIVAKUMAR2

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AIR 2002 SC 3369 2016 (1) SCC 332 and reiterated in the case of LIFE INSURANCE CORPORATION OF INDIA v/s SANJEEV BUILDER PRIVATE LIMITED AND OTHERS3. Further, the issue regarding limitation and all other defences available to the petitioners are to be left open and to be decided at the time of final disposal of the suit. Under these circumstances, while I am of the considered opinion that the Trial Court was fully justified in permitting the proposed amendment, the impugned order deserves to be modified by directing that the proposed amendment shall not relate back to the date of the suit and shall be reckoned/considered from the date of filing of the application, which was filed on 24.05.2022 and by leaving open the question of limitation to be decided by the Trial Court along with other issues in the suit. In the result, the pass the following:

O R D E R

(i) Petition is hereby disposed of.

AIR 2022 SC 4256

(ii) Impugned order dated 12.09.2023 is hereby modified.

(iii) IA No.10 filed under Order VI Rule 17 stands allowed subject to the condition that the propose