Amendments to pleadings are generally allowed to ensure a just and fair trial, provided they do not change the nature and character of the suit or cause undue prejudice to the other party.

This petition is directed against the impugned order

dated 17.06.2022 passed on interlocutory application filed

under Order VI Rule 17 of C.P.C, whereby the said

application

filed

by

the

petitioner/plaintiff

seeking

amendment of the plaint by deleting paragraph No.3 and

substituting same with paragraph No.3A was rejected by

the Trial Court.

2. Heard the learned counsel for the petitioner and

learned counsel for the respondent Nos.1 to 3 and perused

the material on record.

3.

The

material

on

record

discloses

that

the

petitioner/plaintiff instituted the aforesaid suit for

partition and separate possession of her legitimate share

in the suit schedule properties and for other reliefs.

4. At paragraph No.3 of the plaint, the plaintiff

specifically contended that the suit schedule properties are

the ancestral joint family properties of the plaintiff and the

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defendants

and

they

are

in

joint

possession

and

enjoyment of the same and they are entitled for legitimate

shares. After commencement of her evidence, the

petitioner moved the instant application seeking to put

forth the additional pleadings as regards nature and

acquisition of the suit schedule properties by contending

that the suit schedule properties were purchased by selling

earlier existing joint family properties and to the detriment

of the joint family properties estate. It was contended

under proposed amendment that since suit schedule

properties were purchased from out of the sale proceeds

of the joint family properties, they would also partake the

nature of the joint family properties, and were available

for partition. The respondents/defendants opposed the

said application inter alia contending that the trial of the

suit

had

already

commenced

and

the

proposed

amendment would change and alter the nature and

character of the suit and was not maintainable since the

same is barred by limitation. After having heard the

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parties, the Trial Court proceeded to reject the application

mainly on the ground that several admissions in the cross-

examination of P.W.1 were sought to be covered up by her

by way of amendment, which is not permissible in law.

5. A perusal of the impugned order will indicate that

though the Trial Court has held that the proposed

amendment seems to fill up lacuna in the light of the

admissions and discrepancies in the cross-examination,

the Trial Court has neither adverted to nor considered the

alleged lacuna which were said to emerge from the cross-

examination. At any rate, the veracity, credibility,

truthfulness etc., of the evidence of the parties would lie in

the realm of appreciation of the evidence at the time of

final disposal of the suit and not at the stage of

consideration of an application for amendment of plaint.

Further, a perusal of the proposed amendment will

indicate that plaintiff merely intended to amplify and put

forth additional pleadings as regards the nature and

source of acquisition of suit schedule properties. It is also

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relevant to state that respondents/defendants would not

only have an opportunity of filing their additional written

statement to the amended plaint but also would be

entitled to cross-examine the plaintiff and her witnesses

on all aspects of the matter including the averments

contained in the amended plaint. It so also in order to

safeguard the interest of the defendants, it would be just

and appropriate to direct that the application for

amendment shall be reckoned from the date of application

not from the date of filing of the suit. Under these

circumstances, I am of the view that the impugned order

passed by the Trial Court rejecting the application for

amendment filed by the petitioner/plaintiff has occasioned

failure of justice warranting interference by this Court in

the present petition.

6. In the result, I pass the following :

ORDER

(i) The writ petition is allowed.

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(ii) The impugned order dated 17.06.2022

passed in O.S.No.444/2