The petitioner aggrieved by the order dated

14.6.2019 passed by the Civil Judge & JMFC,

Koratagere,

vide

Annexure-E,

dismissing

the

I.A.No.13 filed by the petitioner in O.S.No.44/2010,

has filed the present writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

The petitioner filed a suit in O.S.No.44/2010

against the respondents for partition and separate

possession. In the said suit, the respondents filed a

written statement. On the basis of the pleadings of

the parties, the trial Court framed the issues and

3

posted for plaintiff9s evidence. The petitioner filed an

application-I.A.13 for amendment of plaint. In

support of the application, he has filed an affidavit

stating that the petitioner was under the impression

that she has pleaded the proposed amendment and

the said fact was not pleaded and recently came to

the knowledge of the petitioner. Further, it is

contended that the proposed amendment does not

change the nature of the case nor the cause of action

and prayed to allow the application.

Respondents

filed

objection

to

the

said

application. It is contended that the amendment

sought by the petitioner was within her knowledge

and prays to dismiss the application.

The trial Court after hearing the parties rejected

the said application vide order dated 14.6.2019. The

petitioner aggrieved by the order on I.A.13 has filed

this writ petition.

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3. Heard learned counsel for petitioner and

learned counsel for respondents.

4. Learned counsel for the petitioner submits

that the trial judge has committed an error in not

considering the fact that an application was filed at a

pre-trial stage. He submits that if the application filed

by the petitioner is allowed no injustice would caused

to the respondent. Further, the trial Court failed to

consider that the proposed amendment does not

change the nature of the case nor cause of action. He

further submits that the impugned order is contrary to

the law laid by the Hon9ble Apex Court in ABDUL

REHMAN & ANR. VS. MOHD. RULDU & ORS., reported in

2012 AIR SCW 5419. Hence, on this ground, he prays

to allow the writ petition.

5.

Per

contra,

learned

counsel

for

the

respondents supports the impugned order.

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6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. In order to consider the contention of the

learned counsel for petitioners, it is necessary to

consider Order VI Rule (1) and Rule (17) CPC, which

reads as under:

"1. Pleading. - "Pleading" shall

mean plaint or written statement.

"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

6

the matter before the commencement of

trial."

As per the proviso to Order VI Rule 17 CPC, no

application for amendment shall be entertained after

the commencement of trial, unless the Court comes to

a conclusion that inspite of due diligence, parties could

not have raised the matter before the commencement

of trial.

8. It is not in dispute that the petitioner filed an

application for amendment of the plaint at the pre-

trial stage. The application for amendment has to be

considered

liberally

if

it

is

filed

before

the

commencement of trial. The object and purpose of

granting an amendment really sub-serves the ultimate

cause of justice and avoid further litigation. The

Hon9ble Apex Court in the case of ABDUL REHMAN

supra held that an application for amendment has to

be considered liberally if it is filed before the

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commencement of trial. The trial Court without

considering the said aspect has proceeded