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2012 DIGILAW 464 (KAR)

Gowradevi S. Orekondy v. K. B. Rudrappa

2012-06-05

H.G.RAMESH

body2012
Judgment :- H.G.RAMESH, J. (Oral): 1. In these two Writ petitions, defendant Nos.9 to 13 have challenged the common order dated 18.02.2012 passed by the trial Court in the suit in O.S.No.230/2009 (old No.430/2000) allowing I.A.Nos.43 & 44 filed by the plaintiffs. I.A.No.43 was filed under VI Rule 17 of the Code of Civil Procedure, 1908 (‘the CPC’ for short) seeking permission to amend the plaint. I.A.No.44 was filed under Order I rule 10 of the CPC seeking permission to impaled M/s. K.B. Rudrappa and Co., a registered Partnership Firm as plaintiff No. 7 in the suit. 2. I have heard the learned Counsel for the parties and pursued the impugned order. Learned Counsel for the petitioners submitted that the trial in the suit had commenced on 11.7.2011 and the application-I.A.No.43 for amendment of the plaint was filed on 14.09.2011 i.e. after commencement of the trial. The trial Court, without examining the matter as contemplated under the proviso to Order VI rule 17 of the CPC, has allowed the amendment application, and hence, the order being contrary to the proviso is unsustainable in law. 3. It is not disputed by the learned Counsel for the respondents that the application for amendment was filed after commencement of the trial and that no finding as required under the proviso is recorded by the trial Court while allowing the amendment application. 4. To examine the contention urged, it is relevant to refer to Order VI rule 17 of the CPC, which reads as follows: 17. Amendment of pleading.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the means before the commencement of trial.” (Emphasis supplied) 5. Though Order VI rule 17 of the CPC confers power on the Court to amend the pleadings at any stage of the proceedings, the proviso therein restricts that power after commencement of the trail. Though Order VI rule 17 of the CPC confers power on the Court to amend the pleadings at any stage of the proceedings, the proviso therein restricts that power after commencement of the trail. As per the proviso, no application for amendment of pleadings shall be allowed after commencement of the trial, unless the court records a finding that in spite of due diligence, the party could not have sought for the amendment before the commencement of trial. In the present case, the trial court has erred in law in not examining as to whether the plaintiffs, in spite of due diligence, could not have sought for the amendment, before the commencement of trial. In the absence of any such examination as mandated under the proviso, the impugned order allowing the application for amendment being contrary to the proviso is unsustainable in law. Accordingly, it is liable to be set aside and the matter requires to be reconsidered by the trial Court in accordance with law. 6. Coming to the order allowing I.A.No.44 which was filed for impleading M/s. K.B.Rudrappa and company as plaintiff No.7, it is stated by the learned counsel for the plaintiffs that the said firm was not impleaded earlier due to inadvertence. In my opinion, the order allowing I.A.44 cannot be said to suffer from any error of jurisdiction or failure of justice warranting interference under the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. 7. At this stage, the learned Counsel on both sides submit that the parties will fully cooperate with the trial Court for expeditious disposal of the suit and pray for a direction to the trial Court to dispose of the suit expeditiously. 8. In view of the above, I make the following order: (i) The impugned order dated 18.2.2012 allowing I.A.No.43 in the suit in O.S.No.230/2009 is set-aside. The matter is remitted to the trial Court for reconsideration in accordance with law. The reconsideration shall be made expeditiously and in any event within four months from the date of receipt/production of a certified copy of this order. The matter is remitted to the trial Court for reconsideration in accordance with law. The reconsideration shall be made expeditiously and in any event within four months from the date of receipt/production of a certified copy of this order. All contentions of both the parties are kept open; (ii) The impugned order insofar as it relates to allowing of I.A.No.44 is affirmed; (iii) As the suit was filed in the year 2000, the trial Court is directed to dispose of the suit expeditiously without granting any unnecessary adjournments. Petitions disposed of.