Harichandrappa S/o Late Nagappa v. Gangadharappa S/o Late Gangappa
2018-12-12
S.G.PANDIT
body2018
DigiLaw.ai
ORDER : Petitioner/plaintiff is before this Court, assailing the order dated 03-07-2014 passed on I.A.No.3 in O.S.No.248/2012 on the file of the Civil Judge and JMFC, Gudibanda by which, the application under Order VI Rule 17 of CPC is rejected. 2. Petitioner is the plaintiff and respondents are defendants in O.S.No.248/2012 filed for a decree of partition of the suit schedule properties. When the suit was at the stage of plaintiff’s evidence, the plaintiff filed an application for amendment of the plaint to add paragraph 3(a) to insert additional facts and to include three items of the properties to the suit schedule. In the affidavit filed in support of the application it is stated that items No.5 to 7 which the plaintiff intends to include by way of amendment and they are joint family properties. By the impugned order, the trial Court rejected the application filed by the plaintiff on the ground that the application is filed belatedly and no particulars are furnished in respect of the items which are sought to be included to the suit schedule. Aggrieved by the said order, the petitioner/plaintiff is before this Court in this writ petition. 3. Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the writ papers. 4. Learned counsel for the petitioner submits that he would restrict the amendment application only to include the suit items No.5 to 7 to the suit schedule and he would not press amendment insofar as including additional facts. He submits that in a suit for partition, at any stage of the proceedings, the properties could be included to suit schedule. He also submits that items No.5 to 7 are joint family properties which were left out at the time of filing of the plaint. 5. Per contra, learned counsel for the respondents submits that no particulars whatsoever are furnished to include items No.5 to 7 to the suit schedule. Further, he submits that trial has commenced and after commencement of trial, it is not open for the court to allow the amendment of pleadings. 6. The suit is one for partition. At the time of filing of the suit, the suit schedule contained only four items of the properties. The case of the plaintiff/petitioner is that at the time of filing the suit, items No.5 to 7 mentioned in the amendment application were left out.
6. The suit is one for partition. At the time of filing of the suit, the suit schedule contained only four items of the properties. The case of the plaintiff/petitioner is that at the time of filing the suit, items No.5 to 7 mentioned in the amendment application were left out. In a suit for partition, the properties could be included at any stage of the proceedings, but it is for the person who seeks to include the properties to prove that the same are ancestral or joint family properties. Mere inclusion of properties to the suit schedule would not mean that the parties are entitled for partition of the said properties. 7. Order VI Rule 17 of CPC provides for amendment of pleadings at any stage of the proceedings. Proviso to the said rule contemplates that if the amendment application is filed subsequent to commencement of trial, the party seeking amendment shall satisfy the court that in spite of due diligence, the same could not be brought before commencement of trial. In the case on hand, it is a partition suit and the suit is at the stage of plaintiff’s evidence. It is stated that items No.5 to 7 mentioned in the amendment application are joint family properties and were left out at the time of filing of the plaint. The purpose of allowing amendment is to minimize the litigation and to avoid multiplicity of proceedings. Hence, I am of the considered view that the order passed by the trial Court is erroneous and the same is liable to be set aside. 8. Accordingly, the writ petition is allowed. The order dated 03-07-2014 passed on I.A.No.3 filed under Order VI Rule 17 of CPC in O.S.No.248/2012 on the file of the Civil Judge and JMFC, Gudibanda is set aside and the application is allowed only to an extent of including items No.5 to 7 to the plaint schedule. The respondents/defendants are at liberty to file additional written statement.