ORDER

1. Aggrieved by the order passed on I.A.No.20 filed under Order VI Rule 17 r/w Section 151 of CPC in O.S.No.269/2016, dated 18.03.2024, on the file of III Addl. Senior Civil Judge and CJM, at Mysuru, defendant therein has preferred this writ petition.

2. O.S.No.269/2016 has been filed by the sisters of the petitioner herein for partition and separate possession of the suit schedule property. The case of the respondents herein, in original suit, is that the suit schedule property belonged to their mother and they also have right over the property apart from the petitioner herein and hence, filed original suit for partition and separate possession in respect of the suit schedule property.

3. The petitioner herein has filed his written statement and has contested the original suit. When the original suit was posted for final arguments, he preferred an application under Order VI Rule 17 of CPC, to amend his written statement extensively by adding new facts and also including two properties which is mentioned in the amendment application as the property belonging to the family which also requires partition.

4. The trial Court on the ground that the properties sought to be included in the written statement were the properties which were subject matter of the Regular appeal in R.A.Nos.169/2013, 186/2013 and 196/2013, which have already been disposed of and that the petitioner herein was party to the proceedings and because of the said appeals he knew the nature of the said properties and that the petitioner in spite of knowing about the said properties much earlier, has filed the application to amend the written statement at a belated stage and reasoning given in the affidavit does not satisfy to the proviso under Order VI Rule 17 of CPC and that the application is filed only to prolong the proceedings, has dismissed the application.

5. The question that arises for consideration in the instant writ petition is whether the trial Court has erred in dismissing the application filed by the petitioner herein under Order VI Rule 17 of CPC.

6. Order VI Rule 17 of CPC reads as under:

"17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

7. Thus, when petitioner herein made an application to amend his written statement to include the properties as mentioned in the application, to be filed in the amended written statement, he is required to prove that in spite of due diligence he did not know, at the time of him filing his written statement that the properties concerned were the properties of his family and that he has got a right over the properties and he came to know of it only now.

8. The facts do not support the case of the petitioner herein. It is not in dispute that the properties were subject matter of the Regular Second Appeals mentioned above and that the petitioner herein was a party to the said proceedings. It is not in dispute that he was not aware of the nature of the said properties. It is nowhere pleaded in the affidavit that he was not aware of the fact that the properties belonged to his family and he was not aware as to its existence and he discovered about the same only recently.

9. The above facts reveal that the petitioner failed to show that in spite of due diligence, he could not have raised the matter before the commencement of trial before the trial Court regarding the amendments that he has sought to introduce.

10. Apart from seeking to introduce additional properties as joint family properties, the petitioner herein has s