JUDGMENT

This Original Petition is preferred by defendant nos. 6, 7, 8 and 9 in O.S.No.328 of 2013 pending before the Munsiff Court, Chittur. The petitioners are aggrieved by Ext.P6 order, which allowed an amendment sought for vide Ext.P3 application, after the entire evidence of the defendants are over. In this regard, it is to be noted that the defendants were examined first, in view of the fact that they were propounding a Will, in answer to the claim of the plaintiffs seeking partition.

2. Heard Sri.S.V.Balakrishna Iyer, learned Senior counsel, instructed by Sri.P.B.Krishnan on behalf of the petitioners and Sri.C.P.Pradeep on behalf of the respondents/plaintiffs.

3. Learned Senior Counsel would submit that Ext.P6 order is in derogation of the mandatory provisions contemplated under the Proviso to Order 6, Rule 17. Admittedly, the amendment application vide Ext.P3 was filed, after the evidence on behalf of the defendants were completed. The jurisdictional fact as to why the plaintiffs could not bring in the amendment before commencement of the trial and also the question as to the same being impossible, despite exercise of due diligence, was not properly considered, is the contention raised. A pleading to the effect that the plaintiffs belong to Vaniya Christian community was raised for the first time in Ext.P3 amendment application. Even assuming that the plaintiffs belong to that community, it is not automatic that they are governed by the Hindu Mitakshara Law. On such premise, Ext.P6 order was seriously attacked by the learned Senior counsel.

4. In answer to the above, learned counsel for the respondents would point out that the status of the parties, as belonging to the Vaniya-Christian community, which is pleaded in Ext.P3 amendment application, has not been disputed in Ext.P4, or for that matter, Ext.P5 counter affidavit filed by defendant Nos.6, 7 and 9. That being so, the amendment is quite necessary for the adjudication of the issue before the Court. In such circumstances, Ext.P6 order cannot be frowned upon, is the submission made.

5. Having heard the learned counsel appearing on both sides, this Court primarily notice that the amendment is quite belated. As already indicated, the same was preferred after completion of defense evidence. True that, the evidence of the defendants were adduced first in view of the fact that the defendants are proponding a Will in answer to the claim for partition made by the plaintiffs. Ordinarily, the amendment sought for is hit by the Proviso to Order 6, Rule 17, since no explanation is forthcoming as to why the said amendment could not be sought for earlier, despite exercising due diligence. However, this Court should also notice that the amendment sought for is necessary for a just and proper adjudication of the issue raised in the suit. The suit is one for partition. The claim was resisted by proponding a Will by the defendants. The Will was sent to forensic examination and the report has been filed. In case the defendants fail to prove the Will, the suit has to be allowed in terms of the law, which governs the parties. Therefore, the status of the parties and the law governing them are of fundamental impact in so far as the instant suit is concerned. Therefore, this Court endorses the findings of the learned Munsiff that the amendment sought for is very much necessary for a just and proper adjudication of the suit. The same is also required to avoid multiplicity of proceedings.

6. In these circumstances, Ext.P6 order is liable to be sustained, but on suitable terms as enjoined by Order 6, Rule 17. As already indicated, the amendment is sought for only after commencement of the trial and even after completion of the defendants’ evidence. The suit is of the year 2013 and the amendment is sought for only in the month of August, 2017. There is considerable delay, which certainly prejudice the interest and rights of the defendants in the suit, who are the petitioners herein. In the circu