Inadvertent errors in property descriptions can be amended for effective adjudication, even if filed at a belated stage.

ORAL ORDER

The defendant Nos.6 and 7 in O.S. No.412/2007 on the file of the I Additional Civil Judge and JMFC., Kolar (henceforth referred to as ‘the Trial Court’) have filed this petition challenging an order dated 07.02.2023, by which, an application (I.A No.32) filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure , 1908 (for short, ‘CPC’) was allowed.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioners were defendant Nos.6 and 7 while respondent No.1 herein was the plaintiff and respondent Nos.2 to 5 were defendant Nos.2 to 5 respectively, before the Trial Court.

3. The suit in O.S. No.412/2007 was filed for partition of the plaintiff’s share in the suit schedule properties. The suit was contested by the defendant Nos.6 and 7. When the suit was set down for arguments, the plaintiff filed an application (I.A. No.31) under Order VI Rule 17 of CPC., to amend the plaint and the schedule in the suit. The said application was rejected by the Trial Court on 07.02.2020 which was challenged before this Court in W.P. No.5466/2020. The petition was dismissed as withdrawn on 14.01.2022 with liberty to the petitioner No.1 herein to file a fresh detailed application for amendment of the plaint before the Trial Court. Following this, the plaintiff filed I.A. No.32 seeking for the amendment of the schedule to the plaint concerning suit item Nos.1 and 4 and regarding share of the plaintiff in the suit properties, to substitute '1/4th' in place of '1/5th' in para No.4 of the plaint as well as in the prayer portion of the plaint. Similarly, with regard to the share of defendant Nos.1 to 5 in the suit properties to substitute '1/3rd' in place of '1/4th' in para No.4 of the plaint. That application was allowed by the impugned order.

4. Being aggrieved by the same, defendant Nos.6 and 7 are before this Court in this writ petition.

5. Learned counsel for the defendant Nos.6 and 7/petitioners submitted that the application (I.A. No.32) was filed by the plaintiff at a belated stage and that too when the suit was set down for arguments. He submitted that the suit item No.1 was acquired by the Karnataka Industrial Areas Development Board (KIADB). He submits that the plaintiff could not have sought for amendment of the suit schedule at a belated stage.

6. Learned counsel for the plaintiff / respondent No.1 on the other hand contended that the application (I.A. No.31) was initially filed at the stage when the suit was set down for evidence. However, the said application was rejected by the Trial Court. Thereafter, this Court in W.P No.5466/2020 granted liberty to the petitioner herein to file a fresh detailed application for amendment of the plaint before the Trial Court and accordingly, the instant application was filed. He contends that the survey number of the land in Appasandra was wrongly assigned to the land in Achatanahalli which was an inadvertent error. He contends that allowing the application (I.A. No.32) for amendment would not prejudice the defendants in any manner.

7. I have considered the submissions of the learned counsel for the defendant Nos.6 and 7 / petitioners and the learned counsel for the plaintiff / respondent No.1.

8. A perusal of the affidavit accompanying the application shows that the general power of attorney holder of the plaintiff instead of describing the property at Appasandra village had described it as lying within Achatanahalli and property at Achatanahalli was mentioned as property situate at Appasandra village. This was an inadvertent error and without rectifying the error, the Trial Court cannot pass an effective decree. Therefore, the amendment was necessary for the adjudication of the suit effectually. However, having regard to the fact that the plaintiff had filed the application (I.A. No.32) at a