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2009 DIGILAW 668 (KAR)

Tippanna v. Siddappa

2009-08-25

RAM MOHAN REDDY

body2009
Judgment : Ram Mohan Reddy, J: The rejection of plaintiff’s IA-3 under Order 6, Rule 17 CPC by order dated 21.7.2008 in O.S.No. 244/2007 on the file of the III Addl. Civil Judge (Jr. Dn), Bijapur, has resulted in this petition under Article 227 of the Constitution of India. 2. The petitioner instituted O.S.No. 244/2007 to cancel the sale deed dated 12.1.2007 in respect of the House property No. 164/A/1 measuring 36 X 15 ft of Kataral village, executed by the 1st defendant in favour of the 2nd defendant and for permanent injunction restraining the 2nd defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property. That suit was not opposed by the 1st defendant, whereas the 2nd defendant filed written statement inter alia contending that under a oral partition during the month of December, 2006, between the plaintiff and the 1st defendant, the suit property fell to the share of the 1st defendant, while the landed property fell to the share of the plaintiff and eversince then, the 1st defendant in possession of the suit property conveyed the same under the sale deed and put the 2nd defendant in possession of the suit property. 3. The Trial Court having regard to the pleadings of the parties, framed issues and when the suit was posted for trial, the petitioner filed IA-3 under Order 6, Rule 17 CPC to amend the plaint to insert in paragraph 3, the pleading that the suit property is a joint property of the plaintiff and the 1st defendant, who in his old age is hard of hearing and looked after by the plaintiff. The plaintiff claimed to have assisted financially the construction of the suit property and is a joint owner of the property and has one-half share. In addition, the petitioner sought to amend the plaint by including an additional prayer for partition by metes and bounds of one half of the suit property. In the affidavit accompanying the application, it is stated that the plaintiff had spend monies for the construction of the house and at the time of drafting the plaint, had no intention of making a separate share in the said property but in the wake of possible difference of opinion arising between himself and his father, on the say of the 2nd defendant, the application was necessitated. This application was opposed by filing statement of objections of the 2nd respondent inter alia contending that issues were settled and the case was posted for cross-examination of the plaintiff and hence the application to amend the plaint is impermissible. 4. The Court below having regard to the pleadings of parties, observed that the contention advanced by the plaintiff that the amendment was in the nature of amplification of the pleading in para 3 of the plaint and that in order to avoid multiplicity of proceedings over the claim of the petitioner to one half share in the suit property does not change the nature of the suit, nevertheless by the order impugned, rejected the application on the premise that it was filed belatedly at the stage of recording the cross-examination of the plaintiff. 5. A perusal of para 3 of the plaint discloses that the petitioner asserted a share in the suit property and having financed the repair and improvement of the house property and payment of taxes, etc. The amendment sought was in the nature of amplifying the said pleading to claim the one half share in the suit property. The other amendment to the plaint was, as a consequence of the claim of one half share in the suit property to draw a decree for partition and separate possession of that one half share. 6. The Trial Court without considering the nature of amendment sought for, supra, appears to have misdirected itself on the promise that the application was filed at the belated stage i.e., at the time of trial. The question was not as to whether the application was filed at the time of trial but whether the application for amendment deserved to be allowed. In the circumstances, the Trial Court was not justified in denying the petitioner’s claim for amendment of the plaint. The order impugned is unsustainable. 7. The writ petition is allowed. The order Annexure-A of the Court below is quashed. IA-3 field under Order 6, Rule 17 by the plaintiff is allowed. The petitioner to file an amended plaint.