Amendment of plaint post-trial commencement without due diligence is impermissible, emphasizing courts' discretion in allowing amendments based on procedural fairness.

ORAL ORDER

This petition is filed challenging the order dated

13.09.2019 passed on I.A.No.II by the learned Additional Civil Judge and J.M.F.C., Hosanagara in O.S.No.82/2017.

2. Sri. Chidambara G.S., learned counsel appearing for petitioners submits that the petitioners have filed the suit against the respondent for relief of perpectual injunction claiming that the plaintiffs are in the possession and enjoyment of the suit schedule property from ages and the said property is gramathana property. It is submitted that petitioners have filed an application for amendment of plaint by noticing that the suit schedule property is incorrectly mentioned as 2 acres instead of 2 acres 3 guntas and also sought for amendment of boundaries to the suit schedule property. It is submitted that in the plaint the boundaries towards the western side of the suit schedule property is mentioned as remaining land of the gramathana. Now, proposed amendment is to affect that, towards the western side there is a remaining extent of the gramathana and cart road. Similarly, in the southern side by inadvertence, it is mentioned as plaintiff's agriculture land instead of that now, intends to incorporate Sy.No.121 of the petitioners' agriculture land. It is submitted that the proposed amendment is based on the Ex.P.34, which is the sketch, prepared by the Taluka Surveyor, which depict that the petitioners are in possession of 2 acres 3 guntas of land. It is also submitted that the proposed amendment would not change the nature of the suit nor cause any prejudice to the other side. However, the Trial Court without appreciating any of these facts rejected the application. In support of his contention, he placed reliance on the decisions of Hon'ble Supreme Court in the case ofPURAN RAM Vs. BHAGURAM AND ANOTHER and in the case of SAMPATH KUMAR Vs. AYYAKANNU AND (2008)4 SCC 102 ANOTHER and contended that the Hon'ble Supreme Court has permitted to amend the schedule in a suit for specific performance of contract and also held that the delay cannot be a ground to refuse the amendment, if it is necessary to adjudicate real controversy between the parties. Hence, he seeks to allow the writ petition.

3. Per contra, Sri. Prasad B.S., learned counsel appearing for the respondent supports the impugned order of the Trial Court and submits that, the filing of the application by the petitioners is only to drag on the proceedings as petitioners are squatting over the gramathana property and the application has been rightly rejected by the Trial Court as Ex.P.34-survey report, which is basis for the application is very much available and it was in the knowledge of petitioners when the suit came to be filed. It is further submitted that the proposed amendment changes the nature of the suit as petitioners are adding extent of land as well as cart road in the boundary to the suit schedule property, which is impermissible. The said cart road is being used by the villagers from ages. As such an AIR 2002 SC 3369 amendment cannot be allowed after the commencement of trial. Hence, he seeks to dismiss the petition.

4. I have heard the arguments of the learned counsel for the petitioners, the learned counsel for the respondent and meticulously perused the material available on record. I have given my anxious consideration on the submissions advanced.

5. Petitioners have filed O.S.No.82/2017 against respondent-Panchayat Development Officer for relief of perpectual injunction claiming that petitioners and their family are in possession of suit schedule property measuring 2 acres land from the ages. Based on such assertion, suit was proceeded further. The respondent denied the averments of the plaint conte