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2019 DIGILAW 356 (KAR)

R. Narayanaswamy S/o B. Ramaiah v. Rangamma W/o Late Naramariyappa

2019-02-05

S.SUJATHA

body2019
ORDER : 1. The petitioners have assailed the order dated 17.01.2019 passed on I.A.No.39 in O.S.No.74/2011 on the file of the Senior Civil Judge, Malur. 2. One Smt.Lakkamma filed Civil suit bearing O.S.No.257/2005 before the Senior Civil Judge, Kolar against the respondents for partition and separate possession. The said suit was transferred to the Senior Civil Judge, Malur ['Trial Court' for short] and re-numbered as O.S.NO.74/2011. During the pendency of the said suit, the original plaintiff Smt.Lakkamma died and her LR Smt.Lakshmamma was brought on record. The said Lakshmamma also died during the pendency of the suit. LRs of deceased Lakshmamma/petitioners herein were brought on record. The LRs of deceased plaintiff filed I.A.No.39 under Order 6 Rule 17 of Code of Civil Procedure, 1908 ['CPC' for short], seeking amendment of the plaint, after conclusion of the evidence and when the matter is set down for arguments on merits. The Trial Court rejected the said application. Hence, this writ petition. 3. Learned counsel for the petitioners submitted that the LRs of the deceased original plaintiff after coming on record, noticed certain amendments were necessary to the plaint and hence, sought for the same. However, the Trial Court rejected the same without appreciating the material aspects which goes to the root of the matter and hence seeks for interference by this Court. 4. Having heard the learned counsel for the petitioner and on perusing the material on record, this Court is conscious that the application was filed seeking amendment of the plaint by the LRs of the deceased original plaintiff. It is not in dispute that the matter is now set down for final arguments. The Trial has been commenced nearly about 12 years ago and at this stage, seeking to incorporate one more paragraph and additional prayer would certainly change the nature of the suit. The plaintiffs are making attempt to bring on record the sale details of the transactions relating to the property in question and certain reliefs not claimed in the original plaint certainly relating to the period before 20.12.2014. 5. In the suit for partition filed by the original plaintiff, amendment sought after a lapse of nearly about 13 years cannot be countenanced. 5. In the suit for partition filed by the original plaintiff, amendment sought after a lapse of nearly about 13 years cannot be countenanced. Moreover, the proposed prayer sought by the plaintiffs runs contrary to the tenor of the judgment of the Hon'ble Apex Court in the case of Prakash and Others V/s. Phulavathi and Others [ILR 2015 KAR 5329]. 6. The provision of Order 6 Rule 17 of CPC contemplates that no amendment to the pleadings is permissible 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 matter before the commencement of trial. There is no pleadings in as much as the due diligence in the proposed facts and relief sought which they could not have raised before commencement of trial. 7. Merely because the LRs of the original plaintiff are brought on record at the fag end of the trial, they have no right to recast the plaint to suit their convenience which the original plaintiff has not intended to do. Considering these aspects, rejection of the application by the Trial Court cannot be held to be unjustifiable. In the result, writ petition stands dismissed as devoid of merits.