Smt. Lalithamma Reddy, Smt. N. Shanthamma Reddy and Smt. Manjula vs Smt. Chinnamma since deceased by her L.Rs., Plaintiffs No. 1 to 3 and Defendants No. 2 to 4 (Shri N. Chandrashekar and Others)

A.N. Venugopala Gowda, J.—Petitioners/Plaintiffs have instituted suit against Respondents/Defendants for partition and separate possession in respect of plaint schedule properties. The Defendants have filed written statement on 24.2.2003 and have contested the claim of the Plaintiffs. Issues were framed. Trial of the suit commenced. On 12.1.2010, the Plaintiffs filed I.A.10 under Order 6 Rule 17 CPC seeking leave of the Court to amend the plaint to incorporate proposed pleading as para 4(a). Statement of objections was filed by the Defendants and the prayer in the application was opposed. The Trial Court, has dismissed LA. 10. Aggrieved, the Plaintiffs have filed this writ petition.

Sri M.K. Shivaraju, learned Counsel appearing for the Petitioners firstly contended that, the I.A.10 has not been considered in correct perspective by the Trial Court. Secondly, the proposed amendment is necessary to decide the real question in controversy between the parties and by disallowing I.A.10, the Trial Court has committed material error and irregularity.

Smt. N. Sharadha, learned Counsel appearing for the Respondents 2 to 4 on the other hand firstly contended that, I.A.10 is not maintainable since it was filed after commencement of the trial. Secondly, the Plaintiffs by filing I.A.10 attempted to introduce a new case so as to improve their position in the suit. Thirdly, due diligence was not shown. Lastly, the Trial Court has considered I.A.10 in the correct perspective and hence, no interference is called for.

I have perused the writ petition papers.

The point for consideration is:

Whether the impugned order is irrational and illegal?

In para 6 of the plaint, it was pleaded that, Schedule C property was nominally applied in the name of Defendant 2 and the same was allotted by City Improvement Trust Board to Defendants and a lease-cum-sale agreement came to be executed. The sale consideration was paid from joint family fund and the said property, is a joint family property. In para 8 of the plaint, it has been stated that, C and D Schedule property - residential construction was put up by Defendants 1, 2, 3 and 4 jointly by contributing funds for the said purpose. The said averments have been denied contending that, the property is self-acquired property of Defendant 2.

Indisputably, the trial of the suit has commenced. As such, the first part of the proviso under Rule 17 of Order 6 CPC stands attracted. The perusal of the affidavit in support of I.A.10 does not indicate that, there was any due diligence on the part of the Plaintiffs. The plaint does contain averments with regard to C and D schedule properties, noticed supra. Hence, I.A.10 has rightly been dismissed by the Trial Court. The Defendants would suffer prejudice if additional pleadings with regard to C and D schedule property is permitted to be incorporated in the plaint. Since there is a pleading with reference to C and D schedule property, in the plaint, it is unnecessary to allow the prayer in I.A.10.

The Trial Court has correctly considered I.A.10 and the dismissal of said application in the facts and circumstances of the case is neither irrational nor illegal for being interfered with in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

In the result, the writ petition being devoid of merit, shall stand dismissed. No costs.