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2018 DIGILAW 1229 (KAR)

Aswathamma, W/o Rajanna v. Nagamma, W/o Late Veerahanumaiah

2018-12-20

S.G.PANDIT

body2018
ORDER : Petitioners are before this Court under Article 227 of the Constitution of India, being aggrieved by the order dated 15.04.2014 passed on the I.A. filed under Order VI Rule 17 of CPC to amend the written statement in O.S.No.124/2009 on the file of the Principal Civil Judge and JMFC, Madhugiri. 2. Petitioners are defendants and respondents are plaintiffs in O.S.No.124/2009 filed for declaring that the plaintiffs are owners and in lawful possession of the suit land and for consequential relief of permanent injunction. On appearance, the defendants filed written statement contending that the boundaries and measurement shown by the plaintiffs is not correct. It is also contended that the plaintiffs have included 1 gunta of kharab land and shown the boundaries to the suit schedule property. The parties went into trial and when the matter stood at the stage of defendants’ evidence, the petitioners/defendants filed application under Order VI Rule 17 of CPC to amend the written statement to include the averment which reads as follows: “7(a) – The boundaries furnished to the suit schedule property is false and misleading. The plaintiffs claiming illegal right over 12 guntas of land in Sy.No : 30/2 ( ) which is bounded by East: Talaparige Kaluve, West:Gramatana, North: Land of 1st defendant measuring 21 guntas and South: Kharab land and then the Road leading from Kambathanahalli and Bijawara, It is submitted towards Southern side to the said 11 guntas of land, there is a kharab land wherein the disputed trees, well, Gobar Gas plant, tamarind trees and coconut trees are situated, the following is the correct boundaries to the Kharab land; East: Talaparige Kaluve, West:Gramatana, North: Land of plaintiff 011 guntas in 30 2 ( ) South:Kambathanahalli and Bijawara Road, It is further submitted that the defendants are in possession and enjoyment of 021 guntas the boundaries to the said 021 guntas are as follows: East:Kaluve, West: Gramatana, North: Land of defendants, South: Land belongs to the plaintiffs measuring 011 guntas, then the Kharab land.” In sum and substance, the amendment sought is to say that the plaintiffs have not given proper boundaries of the plaintiffs’ land. The said application was objected by the plaintiffs by filing objections contending that the boundaries given to the suit land are correct and it is also stated that the amendment sought is not necessary to decide the issues involved in the suit. The said application was objected by the plaintiffs by filing objections contending that the boundaries given to the suit land are correct and it is also stated that the amendment sought is not necessary to decide the issues involved in the suit. The trial Court, by the impugned order dated 15.04.2014 rejected the application filed by the petitioners/defendants to amend the written statement, which order is impugned in these writ petitions. 3. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Perused the writ papers. 4. Learned counsel for the petitioners submits that as the plaintiffs have not shown the boundaries of the suit schedule property properly and had included 1 gunta of kharab land, it has become necessary for the defendants to amend the written statement to show the boundaries of the plaintiffs’ land and to include the averments as above. It is further submitted that the amendment is absolutely necessary to decide the issues involved in the suit as the plaintiffs have included 1 gunta of kharab land in the suit schedule property. It is also submitted that the defendants are in possession and enjoyment of 21 guntas of land, boundaries of which is also sought to be added by way of proposed amendment. 5. Per contra, learned counsel for the respondents submits that amendment application filed at the stage of evidence is not maintainable and amendment sought is also not necessary in view of the fact that the contention to the effect that the boundaries are not properly shown is already taken in the written statement. 6. Plaintiffs’ suit is for declaration to declare that the plaintiffs are the owners in lawful possession and enjoyment of the suit land and for permanent injunction. They have given specific schedule to the plaint. It is for the plaintiffs to prove that they are the owners in possession of the suit schedule property. The amendment sought by the defendants is to include the averment with regard to incorrect boundaries shown by the plaintiffs and also to include that the plaintiffs have included 1 gunta of kharab land in the suit schedule. It is plaintiffs’ suit and it is for them to prove that they are in lawful possession and enjoyment of the suit schedule property by producing cogent evidence, both oral and documentary. It is plaintiffs’ suit and it is for them to prove that they are in lawful possession and enjoyment of the suit schedule property by producing cogent evidence, both oral and documentary. When the defendants have already taken a contention that the boundaries shown by the plaintiffs to the suit schedule are incorrect and also that the plaintiffs have included 1 gunta of kharab land, again amendment to explain the same would not be necessary. The trial Court has rightly rejected the application filed under Order VI Rule 17 of CPC to amend the written statement. The Court on examination of the material on record has come to the conclusion that the amendment sought is not necessary for adjudicating the real dispute or controversy between the parties. The amendment sought was within the knowledge of defendants as on the date of filing the written statement. In the affidavit filed in support of the application, no reasons whatsoever is indicated for not raising the issue before commencement of trial. Order VI Rule 17 of CPC permits the amendment of pleadings at any stage of the proceedings, but when the amendment is sought subsequent to commencement of trial, it is for the party who seeks amendment to satisfy the court with regard to due diligence for not carrying out such amendment earlier. 7. No grounds are made out to interfere with the order passed by the trial Court. Accordingly, the writ petitions are rejected.