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2019 DIGILAW 1433 (KAR)

Shikshan Prasarak Mandal, Raibag v. Mayappa

2019-06-26

S.G.PANDIT

body2019
JUDGMENT : S.G. Pandit, J. The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 13.06.2018 in O.S. No. 204/2016 on the file of the Senior Civil Judge & JMFC, Raibag vide Annexure-E. 2. The petitioner is the plaintiff and respondents are defendants in O.S. No. 204/2016 filed for specific performance of contract. When the suit was at the stage of cross-examination of P.W.1 the defendants filed application under Order VI Rule 17 of CPC to amend the written statement to incorporate certain facts, that is to say with regard to sale deed executed by defendant no.1 in favour of defendant No.3 on 13.01.2014. Further it is stated that the scheduled land is a granted land. Hence, the defendant could not have executed the agreement during the non alienation period. It is also stated in the amendment application that the defendants never approached the plaintiff offering to sell the suit schedule property. It is stated in the affidavit in support of the application that while instructing the Advocate to prepare the written statement this information was inadvertently not furnished. Hence, it became necessary for them to file amendment application. 3. Per contra plaintiff filed objection opposing the amendment. It is stated that the averments which the defendants intend to add were within the knowledge of defendants even before filing the written statement. Hence, the defendant be not permitted to amend the written statement. It is also stated in the objection statement that the averments which the defendants intend to add are already on record. Hence, prayed for dismissal of the application. 4. The trial Court by the impugned order allowed the application filed under Order VI Rule 17 of CPC with costs of Rs.5,000/-. Aggrieved by the same, the plaintiff is before this Court. 5. Heard the learned counsel for the parties and perused the writ papers. 6. The learned counsel for the petitioner would submit that the amendment application is filed only to drag on the proceedings and there are no bonafides in the application. The averment which the defendants intend to add by way of amendment are already on record and further it is contended that the averments which they intend to add were within the knowledge of the defendants as on the date of filing of the written statement. The averment which the defendants intend to add by way of amendment are already on record and further it is contended that the averments which they intend to add were within the knowledge of the defendants as on the date of filing of the written statement. Hence, defendants are not entitled to seek for amendment at this stage. It is also stated that the trial has already commenced and P.W.1 has filed his affidavit evidence. Hence, after commencement of trial, amendment is not permissible. 7. Per contra learned counsel for the respondents-defendants would submit that the suit is at the stage of cross-examination of P.W.1. The defendants are yet to cross examine the plaintiff. The amendment sought is with regard to the sale deed executed by defendant in favour of defendant no. 3 on 13.01.2014 and to state that the land in question is granted by the Land Tribunal which cannot be sold during the non alienation period. It is also to be added that the defendants had not approached the plaintiff offering to sell the suit schedule property, which are necessary for proper adjudication of issue involved in the suit. 8. The suit is one for specific performance of contract. Admittedly the suit is at the stage of cross examination of P.W.1. The defendants have not yet commenced cross examination. At this stage application under Order VI Rule 17 of CPC is filed by defendants to amend the written statement to add averments as stated in the application. The averments which the defendants intend to add to their written statement was with regard to the sale deed executed by defendant No.1 in favour of defendant No.3 and to say that the land in question is a granted land by the Land Tribunal and during the non alienation period the land cannot be sold. The defendants also intend to add that they have not approached the plaintiff to sell their land under Order VI Rule 17 of CPC. The application for amendment of pleadings could be made at any stage of the proceedings. If the application is made after commencement of trial, it is for the party who applies for the amendment to show due diligence on their part and to show that why he could not file the application earlier. 9. The application for amendment of pleadings could be made at any stage of the proceedings. If the application is made after commencement of trial, it is for the party who applies for the amendment to show due diligence on their part and to show that why he could not file the application earlier. 9. In the present case even though the plaintiff has filed his affidavit evidence the cross examination has not yet commenced. On going through the amendment sought to the written statement if those averments are permitted to be added no prejudice would be caused to the plaintiff. Adding of averments to the written statement would neither change the nature of the suit nor it would affect in any manner the case of the plaintiff. 10. On the other hand permitting the amendment of written statement would enable the Court to properly decide the issue involved in the suit. The Hon'ble Apex Court in catena of decisions has held that amendment of written statement is to be permitted liberally when compared to permitting amendment of plaint. The purpose of allowing amendment is to minimize the litigation and to avoid multiplicity of proceedings. Hence, I am of the view that the trial Court has not committed any error. No ground is made by the petitioner to interfere with the order of the trial Court, under Article 227 of the Constitution. Hence, the Writ Petition is rejected. In view of disposal of the writ petition on merits, pending applications, if any, also stand disposed of.