Patreppa vs Balappa and Others

R.S. Chauhan, J.—Aggrieved by the order dated 10.10.13 passed by the Senior Civil Judge, Soundatti, whereby the learned Civil Judge has dismissed the petitioner''s application under Order 6 Rule 17 CPC, the petitioner has approached this Court.

The brief facts of the case are that respondents Nos. 1 and 2 had filed a suit for partition and separate possession wherein they had claimed certain properties as belonging to the Hindu joint family; they further claimed that they were entitled to 1/3rd of the suit properties. The petitioner, as defendant, filed his written statement. In the written statement, he took a specific stand that in fact the properties were partitioned as far back as 1972. The partition was acted upon as certain mutations were effected, on the basis of the said partition, by the revenue authorities. After the evidence of PW.1 was recorded, but before the cross-examination of PW.1 could commence, the petitioner filed an application under Order 6 rule 17 CPC for wanting to amend the written statement. However, by the impugned order dated 10.10.2013, the said application has been dismissed. Hence, this petition before this Court.

Mr. Sachm S. Magadum, the learned Counsel for the petitioner, has raised the following contentions before this Court: firstly, the petitioner wanted to clarify that the property in Sy. No. 197 of Akkisagar village was purchased by their father and was his self acquired property. Thus, the property is not the property of the joint Hindu Family. Therefore, the proposed amendment would not change the nature of the suit. Moreover, relying on the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., , the learned Counsel has pleaded that if the amendments are necessary for determining the real questions in controversy between the parties, and if the amendments are not going to cause injustice to the other side, the amendment should be allowed. According to the learned Counsel, both these conditions have been met in the present case. Thirdly, the amendment being made by the defendant should be dealt with more liberally than the amendment being made by the plaintiffs. In order to support this contention, the learned Counsel has relied on the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary, [ (1995) Supp(3) SCC 179].

On the other hand, Sri Nagaraj Appannanavar, the learned Counsel for the respondents, has vehemently contended that prior to the 2002 amendment in CPC, a plaint or written statement could be amended at any stage of the trial. However, after the 2002 amendment, a proviso has been added to Rule 17 of Order 6 of CPC. According to the proviso, an amendment should not be allowed after the trial has commenced, unless the party proposing the amendment can satisfy the court that the facts sought to be introduced were not within his/her knowledge prior to the commencement of the trial inspite of due diligence. According to the learned Counsel for the respondents, the facts which are sought to be introduced by the petitioner were well within his knowledge even when he had filed the written statement. Therefore, new facts which are being brought were well within his knowledge. Hence, under the proviso, the learned Civil Judge was justified in dismissing the application.

Heard the learned Counsel for the parties and perused the impugned award.

Order VI Rule 17 CPC 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."

A bare perusal of the Order 6 Rule 17 CPC clearly reads that while the first part of Rule 17 is a general provision, but the proviso clearly restricts an amendment of a plaint or a written statement after the trial has commenced. Hence, the right to amend can be granted only if the court is convinced that inspite of due diligence the facts sought to be introduced by way of amendment could not have been discovered by the party prior to commencement of the trial.

A bare perusal of the application for amendment filed by the petitioner clearly reveals, that in the written statement he had taken a specific plea that there was a previous partition between the family in 1972. He had also pleaded that the property in Sy. No. 197 of Akkisagar village, Saundatti Taluk, was not a joint family property as it was self-acquired one by his father. Thus, both the facts were fully known to the petitioner on the day when he had filed the written statement. Therefore, there are no new facts, which the petitioner is trying to bring on record. Moreover, the petitioner has not claimed that the facts which he wishes to bring on record by way of amendment have come to his knowledge subsequent to the filing of the written statement. Thus, if he wanted to make the clarifications he was free to do so when he had filed the written statement and not subsequently thereto. Hence, the petitioner has not fulfilled the requirement of proviso to Rule 17 of Order 6 CPC.

The only other question which is relevant is, whether such a clarification would permit the court to determine the real question in controversy between the parties or not? Since the petitioner has already taken a defence, since by the impugned order the learned Civil Judge has clearly permitted the petitioner to lead evidence with regard to the defence taken by him, the amendments are superfluous for doing complete justice to the parties. For even if the amendment were not allowed, the petitioner is not being prevented from establishing the defence taken in the written statement submitted by him. Therefore, the amendments are not essential for doing complete justice between the parties.

For the reasons stated, this Court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit is hereby dismissed.