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2020 DIGILAW 343 (KAR)

SADANA D/O. MADEV HEGDE v. MAHABALESHWAR

2020-02-05

S.G.PANDIT

body2020
ORDER : The petitioner/plaintiff in OS No.4/2003 on the file of I Addl. Civil Judge (Jr.Dn.), Sirsi is before this Court assailing the order dated 4.1.2020 on IA No.27 by which the application filed under Order VI Rule 17 of CPC is rejected. 2. The aforestated suit had been filed in the year 2003 for partition and separate possession. The defendant No.1 filed written statement on 1.4.2003 and defendants 2 and 3 filed written statement on 28.2.2003 contending execution of Will in their favour. When the suit was at the stage of the defendants’ evidence, the petitioner/plaintiff filed the present application for amendment under Order VI Rule 17 of CPC seeking permission to add suit averments with regard to Will dated 6.3.1988 and for additional prayer to declare that the Will dated 6.3.1988 would not bind on the plaintiff’s share in the suit schedule properties. The said application was opposed by the defendants. The Trial Court on consideration of the contentions as well as objections, under the impugned order rejected the application filed by the plaintiff under Order VI Rule 17 of CPC. Being aggrieved by the said order, the petitioner/plaintiff is before this Court. 3. Heard the learned counsel for the petitioner/plaintiff and perused the writ petition papers. 4. Learned counsel for the petitioner/plaintiff submits that the amendment is absolutely necessary for proper adjudication of the issue involved in the suit. He further submits that the suit filed in the year 2003 came to be compromised on 6.3.2010 and the said compromise decree was challenged. This Court set-aside the compromise decree and remanded the matter to the trial Court for fresh disposal. After remand, the plaintiff filed the present application to avoid multiplicity of the proceedings. Hence, he prays for allowing the writ petition and also amendment application. 5. Having heard the learned counsel for the petitioner and on perusal of the material on record, I am of the view that the petitioner has not made out any ground to interfere with the impugned order under Article 227 of the Constitution of India. 6. Admittedly, the suit is one for partition and separate possession which was filed on 14.1.2003. The defendant No.1 filed written statement on 1.4.2003 and defendants 2 and 3 filed written statement on 28.2.2003 contending execution of Will dated 6.3.1988 in their favour. 6. Admittedly, the suit is one for partition and separate possession which was filed on 14.1.2003. The defendant No.1 filed written statement on 1.4.2003 and defendants 2 and 3 filed written statement on 28.2.2003 contending execution of Will dated 6.3.1988 in their favour. It is also noticed that the revenue proceedings had taken place based on the said Will and order had been passed on 3.1.1995, wherein the petitioner had participated in the revenue proceedings. From the material on record and from objections of the defendants, it is clear that the execution of the Will was well within the knowledge of the petitioner/plaintiff as on the date of filing of the suit. Amendment application with regard to Will is filed on 16.12.2019 which is after more than 16 years from the date of filing of the suit that too at the stage of the defendants’ evidence. 7. Order VI Rule 17 of CPC provides for amendment of pleadings. The proviso to Order VI Rule 17 of CPC requires that after commencement of trial, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the instant case, no reasons are assigned nor delay is explained as to why the application for amendment filed so belatedly. From the material on record, it is clear that as on the date of filing of the suit itself, execution of the Will was within the knowledge of the plaintiff/petitioner. The trial Court has rightly by detail order rejected the application. There is no perversity or erroneousness in the order passed by the trial Court. Accordingly, the writ petition stands rejected.