Rajesh Bindal, J.

1. Vide impugned order1 passed by the High Court2, an application filed by respondents No. 1 and 2/plaintiffs for amendment of the plaint was allowed subject to costs of ₹2,000/-.

2. Briefly, the facts available on record are that respondents No.

1 and 2 filed a suit3 for partition of the ancestral property belonging to their grand father pleading that no actual partition of the property has 1 Order dated 18.08.2010 passed in W.P. No. 82086 of 2010 2 High Court of Karnataka, Circuit Bench at Gulbarga 3 Original Suit No. 151 of 2005 Digitally signed by Dr.

Naveen Rawal Date: 2024.02.29 16:04:04 IST Reason:

Signature Not Verified ever taken place. When the suit was at the fag end, an application was filed by respondents No. 1 and 2 seeking amendment of the plaint. The amendment sought was to add prayer in the suit for a declaration that an earlier compromise decree dated 14.10.2004 was null and void. As prayer was not made earlier, the court fee required thereon was also sought to be affixed. The ground on which the amendment was sought was that due to oversight and mistake, the respondents No. 1 and 2/plaintiffs were unable to seek the relief of declaration. No prejudice as such would be caused to the defendants as limited relief is for fair partition of the ancestral property. The Trial Court4 dismissed the application. However, when the order5 was challenged before the High Court, the same was set aside and the amendment prayed for by the plaintiffs was allowed subject to payment of costs.

3. Learned counsel for the appellant submitted that in the case in hand, there was a family partition in Original Suit No. 401 of 2003 filed by Smt. Mahadevi and Smt. Sharnamma, wife and daughter-in-law respectively of defendant No.1/Shivasharnappa, impleading the plaintiffs and the defendants as party. A compromise decree dated 14.10.2004 was 4 First Additional Civil Judge (Senior Division) at Gulbarga 5 Order dated 31.05.2010 passed by the Lok Adalat, District Legal Services Authority, Gulbarga.

Thereafter, respondents No. 1 and 2 filed a fresh suit in 2005 seeking partition of the ancestral property. Though in the suit pleading was there with reference to the earlier compromise decree, however for the reasons best known to the plaintiffs, no challenge was made to the same. As a result of the order passed by the High Court, the nature of the suit was changed from partition to declaration, which is impermissible.

3.1 Further in terms of proviso to Order VI Rule 17 CPC, no amendment could be allowed after commencement of the trial. In the case in hand, the suit was at the fag end, as fixed for arguments.

3.2 It was further submitted that the compromise decree was passed on 14.10.2004. In terms of the provisions of Order XXIII Rule 3 CPC, the same could be challenged only before the same Court and not before any other Court.

3.3 He further contended that there was a specific stand taken by the appellant/defendant No. 2 in the written statement that there being a compromise decree in existence, no relief may be admissible to respondents No. 1 and 2, unless that decree is challenged. The written statement was filed in August 2005, still no steps taken by the respondents No. 1 and 2 in that direction. Part of the suit property having been sold, an amendment was carried out in the plaint in July 2006 to implead the subsequent purchaser. Even at that stage, this relief was not sought.

3.4 It was further contended that the relief of declaration of compromise decree being null and void prayed for by way of amendment otherwise also was time barred as the compromise decree was passed on 14.10.2004. The application for amendment was filed on 08.02.2010. Even the court fee was sought to be affixed at the time of filing of application for amendment.

3.5 The application filed by respondents No. 1 and 2 did not meet the pre-conditions laid down in Order VI Rule 17 CPC for permitting respondents No. 1 and 2 to amend t