This petition by the defendants in O.S.No.47/2019 is

directed against the impugned order dated 14.02.2020 passed

by the Senior Civil Judge & JMFC at Shorapur (for short, ‘the

3

trial court) whereby the application filed in I.A.No.11 by the

petitioners/defendants under Order VI Rule 17 of the CPC for

amendment of written statement was rejected by the trial

court.

2.

Heard the learned counsel for the petitioners and

the learned counsel for the respondents and perused the

material available on record.

3.

The respondents-plaintiffs having been served

with the notice of this petition have chosen to remain

unrepresented and have not contested the petition.

4.

The material on record discloses that the

respondents-plaintiffs instituted the aforesaid suit for partition

and separate possession of their alleged share in the suit

schedule immovable properties and for other reliefs.

5.

The petitioners-defendants having filed their

written statement contested the suit. The respondents-

plaintiffs adduced their oral and documentary evidence

pursuant to which the matter was posted for evidence of the

4

petitioners/defendants. At that stage, the petitioners moved

the instant application in I.A.No.11 seeking amendment of the

written statement by putting-forth certain additional pleadings,

in support of their defence. The said application having been

opposed by the respondents, the trial court proceeded to

reject the said application on the ground that the petitioners

were admitting to withdraw the admission made in the written

statement by putting-forth a new defence which is not

permissible in law especially after commencement of evidence

in view of the proviso to Order VI Rule 17 of CPC. Aggrieved

by the impugned order rejecting I.A.No.11, the petitioners are

before this court by way of the present petition.

6.

A perusal of the impugned order will indicate

clearly that the trial court has failed to consider and appreciate

well settled principle of law governing amendment of

pleadings, in particular written statement that a defendant in a

suit is entitled to take up all defences for the purpose of non-

suiting the plaintiff. In the instant case, having contended that

the suit of the plaintiffs was liable to be dismissed on the

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ground that there was a family settlement at the instance of

the father, the petitioners seek to explain the same by

referring to Will, which according to them was not available to

them at the time of filing of the written statement. The

proposed amendment merely seeks to clarify and explain the

defence already put-forth in the written statement and the

same does not amount to withdrawing any admission made in

the written statement earlier. It is relevant to state that in the

light

of

the

defence

already

put-forth

by

the

petitioners/defendants in the written statement that plaintiffs-

respondents did not have any right, title or interest or

possession over the suit schedule properties, the veracity and

truthfulness of the proposed amendment which is said to be a

typographical error in relation to alleged Will necessarily will

have to be adjudicated upon at the time of final disposal of the

suit and not at the stage of consideration of the application for

amendment.

7.

Under these circumstances, having regard to the

fact that respondents-plaintiffs would be entitled to file re-

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joinder/reply to the amended written statement coupled with

the fact that respondents-plaintiffs would be entitled to cross-

examine the petitioners and their witnesses on all aspects of

the matter including the proposed amendment, I am of the

considered opinion that no prejudice whatsoever would be

caused to the respondents-plaintiffs if the petitioners were

permitted to amend the written statement as sought for by

them in I.A.No.11. Under these circumstances, the impugned

order rejecting I.A.No.11 has occasioned failure of justice

warranting interference by this Court.

8.

In the result, I pass the following:

ORDER

I)

The petition is he