The petitioner, defendant No.1 in O.S.No.636/2015

on the file of the Principal Civil Judge (Jr.Dn.), Mandya is

before this Court, aggrieved by order dated 25.07.2023

allowing I.A.No.5 filed by respondent/plaintiff under Order

VI Rule 17 of CPC to amend the plaint to include additional

averments and additional prayer for possession of the suit

schedule property.

2.

Heard learned counsel Sri.L.Raja for petitioner and

perused the writ petition papers.

3.

Learned counsel for the petitioner would submit that

the suit of the respondent/plaintiff is for declaration,

declaring that the plaintiff is the absolute owner of the suit

schedule property and for perpetual injunction, restraining

the petitioner/defendant or anybody claiming under him

from interfering with the plaintiff’s peaceful possession and

enjoyment of the suit schedule property. It is submitted

that the suit was at the stage of cross-examination of

defendant’s witness. The plaintiff filed I.A.No.5 under

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Order VI Rule 17 of CPC to amend the suit to add

additional averments and additional prayer for possession.

Learned counsel would submit that the amendment would

change the nature of the suit and cause of action.

Further, he submits that the amendment allowed by the

trial

Court

would

prejudicially

affect

the

petitioner/defendant. Further, learned counsel would

submit that respondent/plaintiff has failed to explain due

diligence as to why he could not bring such amendment

earlier. It is submitted that, since the respondent/plaintiff

has failed to explain due diligence, the trial Court could not

have allowed I.A.No.5 for amendment. Thus, he prays for

allowing the writ petition and to reject I.A.No.5 for

amendment.

4.

Having heard the learned counsel for the petitioner

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 allowing I.A.No.5 for amendment of plaint

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to include additional averments as well as additional

prayer.

5.

The suit as stated above is one for declaration of title

and for mandatory injunction. The proposed amendment

under I.A.No.5 reads as follows:

Proposed Amendment:

a)

To add as per 7(A) after para 7 in the

plaint:

“It is submitted that defendant along with

his family member forcefully trespassed into

the

suit

schedule

property

and

thus

dispossessed the plaintiff from out of the

possession of the suit schedule property held

by the plaintiff, by forming unlawful assembly

during the month January-2019, inspite of

protest made by the plaintiff, as such the

plaintiff was unable to prevent the defendant

and

his

followers

from

forcefully

taking

possession of the suit schedule property.”

b)

To delete the entire pleadings in (A) para

i.e., in prayer portion of the plaint and to add in

its place:

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“To

grant

the

relief

of

decree

of

declaration, declaring that the plaintiff is the

absolute owner of the suit schedule property.”

c)

To delete the entire pleading in the prayer

portion (B) and to add in its place the

following:

“For a decree directing the defendant to

deliver vacant possession of the suit schedule

property in favour of the plaintiff.”

6.

The respondent/plaintiff intends to add additional

averments to state that the respondent/plaintiff was

dispossessed during the month of January 2019 and

defendant forcibly took possession of the suit schedule

property. The respondent/plaintiff also intends to add

additional prayer for vacant possession of the suit

schedule property, since respondent/plaintiff was allegedly

dispossessed by petitioner/defendant during the pendency

of the suit, the respondent/plaintiff could not have brought

the amendment earlier. Since dispossession is during the

pendency of the suit, explaining due diligence would not

arise. Moreover, the proposed amendment to include

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additional prayer is ancillary to the main prayer sought in

the suit. The proposed prayer would not change the

nature or complexion of the suit.

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