Timely amendment applications in civil proceedings must demonstrate due diligence, particularly after trial has commenced, to prevent delays.

CAV JUDGMENT

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

1. The present petition seeks to challenge an order dated 30.01.2021, passed by the Court of the XI Additional City Civil Judge, Bangalore (hereinafter referred to as the ‘Impugned Order’). By the Impugned Order, in IA No.17, filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’), filed by the petitioners/plaintiffs had been dismissed by the learned Trial Court and IA No.18 filed by defendant No.1(d) under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’) has also been dismissed. The challenge in the present petition is to the dismissal of I.A.No.17 filed by the petitioners.

2. The brief facts are that the petitioners/plaintiffs instituted O.S.No.2902/2006 seeking specific performance of an Agreement of Sale dated 18.07.2003 against the predecessor of the respondents, in respect of the suit schedule property. The original defendant filed her Written Statement and contested the suit. Thereafter, the original defendant expired and her Legal Representatives, the respondents herein, were brought on record who also filed their Written Statements.

3. It is the case of the petitioners/plaintiffs that during the cross-examination of Respondent No.2 on 17.02.2020, certain documents were produced which, according to the petitioners, disclosed suppression of material facts, collusion, and alleged fraud relating to the title of the suit schedule property and earlier partition proceedings. On the basis of the said developments during trial, the petitioners filed I.A. No.17 under Order VI Rule 17 of the CPC seeking amendment of the plaint to incorporate additional pleadings in respect of the alleged fraud, suppression, and consequences flowing therefrom. Since this application was dismissed, by the learned Trial Court, this petition has been filed.

4. The learned counsel for the petitioners/plaintiffs further contends that the Impugned Order passed by the learned Trial Court is contrary to law and the material available on record. It is submitted that the learned Trial Court has failed to properly appreciate the pleadings and documents produced by the parties and has passed the order without considering the relevant aspects of the matter.

5. The learned counsel for the respondents/defendants on the other hand contend that the amendment was rightly rejected, since it was belated and lacking in bonafides. It was submitted that the Agreement of Sale dated 18.07.2003 was executed only by the first petitioner and the name of the second petitioner was subsequently introduced without the knowledge or consent of the deceased original defendant, a fact which was admitted in evidence. The agreement required completion of the transaction within three months (by 18.10.2003), i.e., prior to the institution of the partition proceedings; hence, the delay could not be attributed to the pendency of the partition suit.

6. It was further contended by the learned counsel for respondents/defendants that the partition suit had culminated in a Preliminary Decree dated 29.08.2008 declaring defined shares in the property. The respondents were impleaded thereafter in the suit for specific performance filed by the petitioners/plaintiffs. The petitioners had knowledge of the partition proceedings and had availed of the opportunity to cross-examine on those aspects. The present amendment application, filed after the demise of the original defendant and after evidence had been led, only appears to be an attempt to reopen concluded