Abubkarsab vs Buranuddin and Others

B. Veerappa, J.—The petitioner, who is the plaintiff before the Trial Court filed the above writ petition challenging the order dated 22.1.2014 made on I.A. XIV in O.S. No. 32/2006 rejecting his application under Order 6 Rule 17 r/w Section 151 of Code of Civil Procedure for amendment of plaint.

The petitioner-plaintiff filed the suit for partition of 1/3rd share in respect of the suit schedule properties contending that all the suit schedule properties are joint family properties.

The defendant filed the written statement and resisted the plaint averments and prayed for dismissal of the suit. After completion of evidence on both the sides, the plaintiff filed an application dated 16.1.2014 under Order 6 Rule 17 of CPC r/w 151 of Code of Civil Procedure for amendment of plaint to include paragraph 12A after paragraph 12 to the effect that it is subsequent event that during the pendency of the suit. The plaintiff alienated suit property bearing No. 639/5 + 6A/1 measuring 19 guntas out of 1 acre 15 guntas on 22.7.2011 in favour of one Madhu W/o. Mallikarjuna Patil and said fact is necessary to plead in the plaint to adjudicate the rights of the parties. The said application was resisted by the defendant.

After considering the application and objections, the learned Civil Judge passed the impugned order dated 22.1.2015 rejected the said application. Against the said order the present writ petition is filed.

Sri M.M. Patil, learned counsel for the petitioner has contended that the order passed by the Trial Court rejecting the application for amendment is not proper and the amendment will not change the nature of the suit and therefore, the impugned order is liable to be quashed and the application filed by the petitioner for amendment is to avoid multiplicity of proceedings in future and therefore, the rejection of the application is not sustainable etc., and sought for setting aside the order.

I have heard the learned counsel for the petitioner and perused the entire material on record.

It is not in dispute that the petitioner, who is the plaintiff filed the suit for partition and separate possession in respect of suit schedule properties contending that all the suit schedule properties are joint family properties. The same has been resisted by the defendant by filing written statement and after completion of evidence, the matter was posted for arguments. At that belated stage, the plaintiff filed an application for amendment. It is brought to my notice that the purchaser has also been impleaded as a party to the proceedings through an application made by the plaintiff on 16.1.2014.

It is a fact that plaintiff filed a suit for partition in the year 2006 and when the matter was posted for final arguments he has sold a portion of the property in Item No. 1 in the year 2011 and the purchaser has also been impleaded as party to the proceedings and now the present application is filed to include paragraph 12A to the effect that during the pendency of the suit the plaintiff himself alienated 19 guntas of land out of 1 acre 15 guntas in Sy. No. 639/5 + 6A/1 on 22.7.2011. The said application was rejected by the Trial Court holding the application filed by the plaintiff is not tenable as the plaintiff has sold a portion of the property in question in 2011 and seeking amendment, at the stage when the matter was posted for arguments and purchaser of the property from the plaintiff during the pendency of the suit has also been impleaded as a party to the proceedings. The Hon''ble Supreme court while considering the application filed under the provisions of Order 6 Rule 17 of the Code of Civil Procedure in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, held that right to seek impleadment and amend pleadings there is no absolute rule - Transferee purchasing property during the pendency of the suit without leave of the Court - Action of alienation not found bonafide. And in view of the provisions of Section 52 of the Transfer of Property Act and therefore the Trial Court has rightly dismissed the application for amendment, which was filed at the fag end of the proceedings. The purchaser purchased the property during the pendency of the proceedings, that too, when the matter was posted for arguments, is at his risk, if ultimately his vendor gets share in the property under dispute the purchaser will be entitled to the same. The Trial Court taking into consideration the entire material on record, has rightly rejected the application for amendment of the plaint exercising its powers under Order 6 Rule 17 of Code of Civil Procedure the same is in accordance with law. No interference is called for to exercise the powers under extraordinary jurisdiction of Articles 226 and 227 of the Constitution of India. Accordingly the writ petition is dismissed.