The petitioners aggrieved by the order dated

13.12.2021 passed in O.S.No.280/2014 by the Additional

Senior Civil Judge, C.J.M., Tumakuru has filed this writ

petition.

Brief facts leading to filing of this petition are

as under:

Respondent No.1 filed a suit in O.S.No.280/2014 for

the relief of partition and separate possession against the

petitioners and other respondents. Petitioner Nos.1 and 2

filed the written statement. The trial Court framed the

issues. Thereafter, the respondent was examined as PW.1

and examined one witness as PW.2. The petitioners have

adduced their evidence. During the course of preparation

for adducing evidence of DW.2 it was found that the

proposed amendment was not pleaded in the written

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statement through oversight. The petitioners have filed an

application seeking for amendment of written statement.

The said application is opposed by respondent No.1. The

trial Court after hearing the parties rejected the application

filed by the petitioners. Hence, this writ petition.

3.

Heard the learned counsel for the petitioners.

Learned counsel for the petitioners submits

that the petitioners filed an application seeking for

amendment of written statement on the ground that at the

time of preparation of examination-in-chief of DW.2 it has

found that certain facts are not pleaded in the written

statement. Hence, the petitioner filed an application

seeking for amendment of written statement. She further

submits that the trial Court has committed an error in

rejecting the application. She further submits that in order

to avoid the multiplicity of litigation, the trial Court ought

to have allowed the application. On the contrary, rejected

the application. Hence, on these grounds, he prays to

allow the writ petition.

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Heard and perused the records and considered

the submissions made by the learned counsel for the

petitioner.

It is not in dispute that respondent No.1 has

filed a suit for partition and separate possession against

the petitioners and other respondents. In the said suit, the

petitioners

and

respondent

No.2

filed

the

written

statement. Thereafter, the trial Court framed the issues.

Respondent No.1 led the evidence and examined one

witness and closed his side. The matter is posted for

defendant evidence. Respondent No.2 was examined as

DW.1 and thereafter, the matter is posted for further

evidence of defendant No.1. At this stage, the petitioners

have filed an application for amendment of written

statement alleging that at the time of examination-in-chief

certain facts were not pleaded in the written statement.

Except of the said statement, the petitioners have not

established that inspite of due diligence, the petitioners

could not raise the matter before commencement of the

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trial. As per proviso to Order VI Rule 17 of C.P.C., no

application for amendment is to be allowed after the trial

has commenced, unless Court comes to the conclusion that

inspite of due diligence, parties could not raise the matter

before commencement of the trial. The Supreme Court has

reiterated the said fact in the case of Pandit Malhari

Mahale vs Monika Pandit Mahale reported in (2020)11

SCC 549. The trial Court has rightly recorded the finding

that the petitioners have failed to establish that inspite of

due deligence, the petitioners could not rise the matter

before commencement of the trial. The trial Court is

justified in rejecting the application filed by the petitioners.

Hence, I do not find any ground to interfere with the

impugned order.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

ssb