Amendments to the plaint are allowed pre-trial if they facilitate justice and do not alter the suit's nature, as upheld by preceding Supreme Court judgments.

ORDER

Challenging impugned order dated 23.08.2016 passed by I Additional Senior Civil Judge, Bengaluru Rural District on I.A.no.IV in O.S.no.1029/2008, this writ petition is filed.

2. Sri Nagaiah, learned counsel for petitioners submitted that instant writ petition was by defendants in O.S.no.1029/2008 pending on file of I Additional Senior Civil Judge, Bengaluru Rural District. In said suit, respondents (plaintiffs) had sought relief of declaration and permanent injunction in respect of land bearing Sy.no.57/2, measuring 01 acre 31 guntas including 2 guntas of kharab land, situated at Muthugadahalli village, Hesaraghatta Hobli, Bengaluru North Taluk (for short 'suit property'). In plaint plaintiffs had specifically asserted that suit property originally belonged to Shri Lakkanna - grandfather of plaintiff’s husband and allotted to her husband in family partition. It was further specifically stated that since then, it was in possession of plaintiffs and as defendants were interfering with their right, suit was filed.

3. It was submitted that suit was opposed by defendants specifically contending that defendants were in possession of suit property. Defendants pleaded that though suit property originally belonged to Shri Lakkanna, upon his death, it was inherited by his son-in-law Dasarahalli Muniswamaiah. After his death, it fell to share of his daughter Gangamma in family partition that took place on 10.02.1977 and thereafter under oral agreement between Gangamma and Muniyappa for exchange of properties allotted to their shares, suit property came in possession of defendants and they were in possession since then.

4. It was submitted that after filing of written statement, plaintiffs filed I.A.no.4 for amendment of plaint under Order VI Rule 17 of Code of Civil Procedure (for short 'CPC'), for adding alternative prayer for possession, if Court were to conclude that plaintiffs were not in possession of suit property.

5. It was submitted that application was opposed as being tenable as it would change nature of suit, designed to overcome specific defence of defendants and also contrary to entire plaint averments. However, trial Court allowed amendment on erroneous reasoning that amendment for addition of prayer would not result in change of nature of suit property, burden would still lie on plaintiffs to substantiate case on strength of evidence and proposed amendment would not prejudice defendants in any manner.

6. It was contended that amendment sought was contrary to plaint averments and that it was designed to overcome main defence of defendants. It was also contended that amendment would not result in change of nature of suit property had no relevance for purposes of I.A for amendment, while addition of prayer for possession would definitely result in change in nature of suit. On above ground, learned counsel sought for allowing writ petition.

7. Though notices are served on respondents no.1 and 2, they are served and unrepresented, while learned counsel for respondents no.3 to 5 remained absent.

8. Since writ petition is of year 2016, it was heard and taken up for disposal by perusing writ petition records.

9. Firstly, at outset as clarified by learned counsel for petitioners, application for amendment of plaint was filed prior to commencement of trial. In affidavit filed in support of application, it was stated that upon death of original plaintiff and legal representatives coming on record, amendment was sought.

10. Secondly, amendment is sought only to add prayer without alteration of pleadings, therefore, no prejudice would be caused to defendants as burden would lie on plaintiff to prove his case.

11. Insofar as amendment, Hon'ble Supreme