Omanna vs Balabai and Others

K.N. Phaneendra, J.—Sri Murgendra Tubake, learned counsel undertakes to file Vakalath for respondent Nos. 1 and 3.

The petitioner, who is the defendant in OS No. 235/2010, after filing his written statement subsequently when the matter reached the stage of evidence, has filed an application under Order-VI, Rule 17 of CPC, seeking permission of the Court to amend the written statement by incorporating Para No. 5(A).

Para No. 5(A) reads as follows:

"This defendant most humbly submit that, prior to filing this suit, the Plaintiffs have sold one of the suit property bearing R.S. No. 239/9, measuring 29 Gunthas, assessed at Rs. 33-00 Ps. out of which the plaintiff Nos. 2 and 3 sold 14-Gunthas 8-Annas, to one Shri Ramakant Rayappa Patil, 2) Shri Shrikant Rayappa Patil, both residents of Sonoli Village, Tal & District: Belgaum, under registered sale deed dated 03/11/2010 and hence, this contentions has not taken by the plaintiffs in this suit, and further the plaintiffs have not mentioned regarding R.S. No. 236/18, measuring 2-Acre 23-Gunthas, out of this 1-Acre 1-Gunthas, has been sold by the plaintiffs, and another R.S. No. 239/4, measuring 2-Acre 9-Gunthas, out of which 1-Acre is sold by the plaintiffs. These facts have not mentioned by the plaintiffs in this suit. Hence, the suit of the plaintiffs may kindly be dismissed with costs."

The records disclose that the plaintiffs'' suit is for partition and separate possession of the suit schedule properties. It is the contention of the defendant that the plaintiffs are not entitled for partition of the suit schedule properties, because of the reason that there was an earlier partition and the plaintiffs have already taken their share in the suit schedule properties. Therefore, the suit is not maintainable. In the proposed amendment the defendant want to incorporate the fact that, prior to the filing of the suit, the plaintiffs have sold certain suit schedule properties. It is contention of the defendant that, the plaintiffs have taken their share in the suit schedule properties, therefore on that absolute ownership over the said properties they were able to sell the said properties prior to the filing of the suit. In the affidavit filed in support of the application the defendant has stated that he has no knowledge about the said sale before filing the written statement. He came to know recently and immediately he filed the said application.

The learned counsel Sri Murgendra Tubake for the respondents submits before the Court that there are certain previous transactions between the parties. Particularly, the parties have fought out the case in OS No. 289/2001. There the defendant came to know about these aspects, but in spite of that he has not incorporated Para No. 5(A) in his earlier written statement. Therefore, no diligence has been exercised by the defendant at the time of filing of earlier written statement and there was no proper explanation in the application or in the affidavit with regard to the exercise of the due diligence by the defendant. Therefore, he contended that the order of the trial Court is proper and correct.

On perusal of the orders of the trial Court, it is observed that the trial Court mainly relied upon the conduct of the defendant in making such application without giving proper explanation about his diligence not being exercised at the time of filing the first written statement. It is also observed by the trial Court that at the time of cross-examination of witnesses, some questions have been put with regard to the particular aspect and therefore it observed that the defendant has got instructions with regard to the selling of the lands by the plaintiffs at earlier. Therefore, on that ground the application came to be dismissed.

On perusal of the orders of the trial Court there is no whisper by the trial Court, whether the proposed amendment would change the nature of the suit or the defence already taken by the defendant or whether it is necessary for proper adjudication of the rights of the parties, or whether in the absence of such amendment the defendant can effectively put up his defence before the Court, which are the important aspects ought to have been considered by the trial Court. If there is any delay in filing of the application and proper diligence has been exercised, still the Court is of the opinion that the amendment is absolutely necessary for proper adjudication of the rights of the parties, such amendments can be allowed on terms. Under such circumstances, the Court has to allow such amendment if it does not change the nature of the suit and takes away the rights of the opposite party. Under the above said circumstances, as could be seen from Para No. 5(A) sought to be amended by the defendant, he only wants to incorporate this portion of the plea in addition to the plea already taken by him that the plaintiffs are not entitled for partition in view of the earlier partition. He want to say by way of this proposed amendment that the plaintiffs'' conduct that they have sold the property prior to the filing of the suit shows that there was an earlier partition etc. Therefore, in my opinion, it is a further extension of the earlier pleadings only and the proposed amendment does not change the nature of the suit nor it will take way the vested rights of the plaintiffs. Pleadings themselves cannot be the proof, but it is to be proved in accordance with law by leading proper and cogent evidence. Under the above said circumstances, the trial Court has committed wrong in rejecting the application. The Court would have allowed the application on terms if there was any delay or lack of diligence on the part of the defendant.

Hence, I proceed to pass the following:

"ORDER

i) Petition is allowed.

ii) Consequently, the order passed by the learned Senior Civil Judge, Belagavi on IA No. VI is hereby set aside and IA No. VI is allowed on cost of Rs. 1,000/-.

iii) The defendant is permitted to amend the written statement, as sought for in the application.

iv) The plaintiffs are also permitted to file any rejoinder to the said proposed amendment.

v) The trial Court, if necessary, to frame additional issues and then proceed with the case."

Sri Murugendra Tubake, learned counsel is permitted to file Vakalath in the Office for respondent Nos. 1 and 3.