ORDER

Defendant Nos.1 and 2 in O.S.No.3294/2002 on the file of the learned XLIV Additional City Civil and sessions Judge, Bengaluru (hereinafter referred to as 'the trial Court' for brevity), is impugning the order dated 28.02.2019, allowing the application I.A.No.20 filed under Order VI Rule 17 r/w Section

151 of CPC.

2. Heard Sri Dhyan Chinnappa, learned Senior Advocate for the petitioners. Learned counsel for the respondent has not addressed his arguments inspite of granting sufficient opportunity. Perused the materials on record.

3. Learned Senior Advocate for the petitioners submits that the suit is basically for partition and separate possession of one item of the property, against the defendants. I.A.No.19 was filed seeking amendment of the plaint under Order 6 Rule 17 r/w Section 151 of CPC to incorporate separate paragraphs by deleting the existing one and also to replace the plaint schedule with the new one. The said application came to be rejected vide a detailed order dated 07.08.2015. The said order was never challenged by the plaintiff. However, later I.A.No.20 came to be filed with similar prayer with different wordings to incorporate additional paragraphs, to delete existing schedule in the plaint and to incorporate two different properties, to delete the earlier prayer and to include separate prayer for partition and separate possession of the schedule properties.

4. Learned Senior Advocate further submits that when similar prayer made by the plaintiff was already rejected by the trial Court by passing order on I.A.No.19, the plaintiff could not have filed I.A.No.20 with the similar prayer and the trial Court could not have allowed the said application without considering the earlier order passed by it. Learned Senior Advocate also contended that in the impugned order, the trial Court has never considered the fact that the plaintiff is intending to replace few paragraphs in the plaint replacing the schedule appended to the plaint with the new one and also wants to change the prayer in the plaint altogether which amounts to new cause of action for the plaintiff and such amendment could not have been allowed by the trial Court. The impugned order is a cryptic order without taking into consideration any of these facts. Therefore, prays for allowing the petition.

5. The order dated 07.08.2015 passed by the trial Court on I.A.No.19 is produced as per Annexure-L. The said application was also filed under Order 6 Rule 17 of CPC seeking permission to amend the plaint so as to incorporate para 16(a), to delete the existing schedule to the plaint, to insert schedules as described in memorandum of family arrangement dated 01.01.2010, to delete prayer (a) of the plaint and to replace it by the prayer as sought in the application. The said application was also objected by the defendants by filing their objections. The trial Court considered the same on merits and passed a detailed order dismissing the application by forming an opinion that since the plaintiff now wants to place reliance on the memorandum of family arrangement dated 01.01.2010, which came into existence much after filing of the suit and since the plaintiff wants to putforth his claim over certain portion of the property on the basis of the memorandum of family arrangement, the plaintiff will have to give up his claim of partition of the schedule property. The Court has also opined that the plaintiff is basing his claim in the amended portion on different causes of actions than the one pleaded in the original plaint. Therefore, it was held that the amendment introduces a new case and new cause of action and therefore, the same is not permissible.

6. It is stated that the order passed on I.A.19 reached finality, as the plaintiff has never challenged the said order. Instead the plaintiff filed I.A.No.20 seeking similar relief of amending the plaint inserting additional para 16(a) and splitting the schedule property into two with reference to the memorandum of fami