Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 71 (KAR)

D. v. Girija VS Venkataiah

2022-01-14

ASHOK S.KINAGI

body2022
JUDGMENT Ashok S. Kinagi, J. - The petitioner being aggrieved by the order dated 08.09.2021, passed on I.A. No. 6 in O.S. No. 162/2014 by the Addl. Civil Judge & JMFC, Ramanagara, has filed the present writ petition. 2. Brief facts leading rise to filing of this petition are as under: The petitioner filed a suit in O.S. No. 162/2014 for the relief of perpetual injunction against the respondents. The respondents filed written statement. The Trial Court framed issues. Thereafter the Trial Court has recorded the evidence of petitioner and posted the case for cross-examination of DW-1. At that stage, the petitioner filed an application seeking for amendment of plaint. In support of the application, the petitioner has filed an affidavit stating that the petitioner came to know that some error has crept in the plaint. Though the petitioner has acquired suit schedule property measuring 30 guntas under gift deed, due to oversight, the petitioner has stated that the petitioner has acquired the suit schedule property under registered sale deed. The said 30 guntas of land consists of 2 portions with separate boundaries. But in the schedule only one boundary has been mentioned instead of mentioning two boundaries and the same is due to typographical error. Hence prayed to allow the application. The respondents have not filed objections to the said application. The Trial Court has taken the objections to I.A. No. 6 as not filed and heard the argument of learned counsel for petitioner and rejected the said application. Hence the petitioner has filed this writ petition. 3. Though notice was issued to the respondents, inspite of service of notice, respondents remained unrepresented. Heard learned counsel for the petitioner. 4. Learned counsel for the petitioner submits that the petitioner has filed an application seeking amendment of plaint only with an intention to correct the boundaries of the suit property. He further submits that the proposed amendment neither changes the nature of the case nor cause of action. He further submits that the Trial Court has committed an error in rejecting the application. Hence, on these grounds, he prays to allow the writ petition. 5. Perused the records and considered the submissions made by learned counsel for the petitioner. 6. The petitioner filed a suit in the year 2014 and the respondents filed written statement on 09.02.2017. Thereafter, the petitioner has lead evidence and closed his side. Hence, on these grounds, he prays to allow the writ petition. 5. Perused the records and considered the submissions made by learned counsel for the petitioner. 6. The petitioner filed a suit in the year 2014 and the respondents filed written statement on 09.02.2017. Thereafter, the petitioner has lead evidence and closed his side. Then the matter was posted for respondents' evidence. When the case was posted for cross-examination of DW-1, the petitioner has filed an application seeking for amendment of plaint. In order to consider the contention of the petitioner, it is necessary to consider Order VI Rule 17 of CPC which reads as under: "17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed 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." 7. Proviso to Order VI Rule 17 of CPC contemplates that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. From the perusal of the application filed by the petitioner, it does not appear that inspite of due diligence, the petitioner could not have raised the matter before the Trial Court. The Trial Court having satisfied that the petitioner has not explained the reason for filing the application at a belated stage, has come to a conclusion that the petitioner has not made out a ground that inspite of due diligence the petitioner could not have raised the matter before the Trial Court. The Hon'ble Apex Court in Pandit Malhari Mahale vs. Monika Pandit Mahale & Ors., in Civil Appeal No. 189/2020, disposed of on 10.01.2020, held that an application for amendment shall not be entertained after the commencement of trial unless the court comes to a conclusion that inspite of due diligence the party could not raise the matter before commencement of trial. The Trial Court was justified in rejecting the application. In view of the above law laid down by the Hon'ble Apex Court, I do not find any grounds to interfere with the impugned order. Accordingly, the writ petition is dismissed.