ORDER

The appellants in RA No.97 of 2016 on the file of the learned Principal District and Sessions Judge at Chikkaballapur, are impugning the order dated 30.10.2017, dismissing IA No.2 filed under Order VI Rule 17 of CPC.

2. Heard Sri K Raghavendra, learned counsel for the petitioners, Smt B Arati, learned counsel for respondent No.1(a to d) and Sri M Jaiprakash, learned counsel for respondent Nos.2 and 3. Perused the materials on record.

3. Learned counsel for the petitioners submitted that the petitioners as plaintiffs filed OS No.546 of 2007 seeking declaration of their title and for permanent injunction. The defendants have contested the suit. The Trial Court dismissed the suit both on merits as well as on the ground that the boundaries and measurement are not mentioned in the schedule as required under Order VII Rule 3 of CPC. Challenging the said judgment and decree, the plaintiffs have preferred RA No.97 of 2016 which is pending consideration. During the pendency of suit, IA No.2 under Order VI Rule 17 of CPC was filed seeking to amend the schedule as stated in the Annexure. The said application came to be dismissed vide order dated 30.10.2017 and the same is impugned herein. 4. Learned counsel submits that the proposed amendment is only to the effect that the boundaries of the schedule properties and the extent in respect of few items are proposed to be changed in accordance with the description found in Ex.P19 - the registered partition deed dated 15.07.1932. Both the plaintiffs and defendants are claiming their share under the said registered partition deed which is an admitted item. Under such circumstances, the defendants could not have opposed the said application. The findings of the Trial Court that the amendment will change the nature of suit or cause of action is without any basis. The plaintiffs who are claiming their right under the undisputed partition deed is entitled to seek amendment.

5. Learned counsel submits that there was delay in seeking amendment, but the same cannot be a ground to reject the claim of the plaintiffs. To a pointed query, he submits that the petitioners may have to be required to lead further evidence in support of their contention and the Appellate Court may either record further evidence or remand the matter to the Trial Court. Accordingly, he prays for allowing the petition.

6. Per contra, learned counsel for the respondents opposing the petition submitted that even earlier, the defendants have taken up a specific contention that the description of the property in the schedule was not in accordance with Order VII Rule 3 of CPC. Even though, the same was highlighted while the suit was pending before the Trial Court, no necessary steps were taken to correct the description. After trial, the suit came to be dismissed.

7. Learned counsel also submits that all the necessary parties are not impleaded by the plaintiffs to seek declaration. All the properties were also not included in the schedule.

Therefore, the suit is bad for non-joinder of necessary parties and for partial partition. The proposed amendment will change the nature of suit, which was filed during the year 2007. The inordinate delay in filing the application is not explained. Therefore, when the matter is pending in the Appellate Court, the plaintiffs are not entitled to carry out the amendment. 8. Learned counsel further submitted that the submission made by the learned counsel for the petitioners discloses that they are seeking remand of the matter once again to the Trial Court for fresh trial by producing additional evidence. The same cannot be permitted as the same would prejudice the right of the defendants. The defendants are contesting the suit since 2007 and the plaintiffs who are lethargic cannot be permitted to take advantage of the delay and latches on their part. Hence, the Trial Court was right in rejecting the application. Accordingly, they pray for dismissal of the petition.

9. The petitioners as plaintiffs fil