SMT. RANI vs VINOD KUMAR & ORS.

The defendant No.4 filed the present writ petition against the order dated 31.08.2017 made in O.S. No.8853/2005 on the file of the I Addl.

City Civil and Sessions Judge (CCH-2), Bengaluru, allowing I.A.No.19 filed by the plaintiffs under Order VI Rule 17 r/w Section 151 of Code of

Civil Procedure.

The respondents 1 to 3 herein filed suit for declaration, partition and permanent injunction in respect of suit schedule properties contending that

the sale deed dated 20.07.1998 is not binding on the plaintiffs and they are entitled to share and for permanent injunction restraining the defendants

from entering upon or in any way interfering with the peaceful possession and enjoyment of the of the suit schedule properties. The same was

disputed by the defendants by filing written statement. The defendants denied the plaint averments and set up their independent right in respect of

the property obtained under registered sale deed dated 20.07.1998.

After completion of evidence, when the matter was posted for arguments, at that stage, plaintiffs filed I.A.No.19 under Order VI Rule 17 of

Code of Civil Procedure seeking permission to strike out para-14 of the plaint starting from line No.6 beginning with the word ''added'' till end of

the same and also other paras wherever they have claimed 3/5th share and to replace the same by the following sentence, i.e., ""The plaintiffs filed

the above suit for a partition and declaration that they are entitled for 3/5th share in the suit schedule property and after filing of the case, on

25.06.2009 partition was effected by a registered document and they have got their respective shares out of the suit schedule properties"". The

plaintiffs also sought to delete prayer No.(a) in the prayer column. The application was opposed by the defendants by filing objections.

The Trial Court, considering the application and objections, by the impugned order, allowed the application. Aggrieved by the said order,

defendant No.4 has filed the present writ petition.

I have heard the learned counsel for the parties to the lis.

Smt.G.K.Sreevidya, learned counsel for Sri T.N.Viswanatha, learned counsel for the petitioner vehemently contended that the impugned order

passed by the Trial Court allowing the application I.A.No.19 filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure, is

erroneous and contrary to the material on record. She further contended that the application for amendment filed when the matter was posted for

arguments i.e., after completion of evidence is not permissible, in view of the provisions of proviso to Order VI Rule 17 of Code of Civil

Procedure. She further contended that the application is hopelessly barred by time and therefore, sought to quash the impugned order by allowing

the writ petition.

Per contra, Sri Janardhana.G. learned counsel for caveator/respondent Nos.1 to 3/plaintiffs sought to justify the impugned order and contended

that in view of the provisions of Order XXIII Rule 1 of Code of Civil Procedure, at any stage of the proceedings, the plaintiffs can withdraw the

suit or abandon any claim or portion of the claim and therefore, sought for dismissal of the writ petition. In support of his contentions, the learned

counsel relied upon the judgment of the Hon''ble Supreme Court in the case of Anil Kumar Singh vs. Vijay Pal Singh and others reported in AIR

2017 SC 5587 para 24 of which reads as under:

In our considered opinion, when the plaintiff files an application under Order XXIII, Rule 1 and prays for permission to withdraw the suit,

whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made

by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub-rule (4)"".

Having heard the learned counsel for the parties, it is not in dispute that, originally, the plaintiffs filed suit for declaration, partition and permanent

injunction. Now, plaintiffs want to restrict their prayer for declaration and injunction, only. Though the matter was posted for arguments, at that

stage, application was filed for amendment of plaint, though ought to have filed an application under Order XXIII Rule 1 of Code of Civil

Procedure.

The Trial Court, considering the application and the objections, held that, ""now, the plaintiffs are seeking permission to delete first prayer and to

add the fact about partition contending that after filing of suit, on 25.06.2009 partition was effected and they have got their share in the suit

properties. So, the proposed amendment is subsequent event which the plaintiffs are entitled to insert in the plaint for just decision in the case"".

Further, proposed amendment do not change either nature of the suit or fill up the lacuna in the evidence of plaintiffs as they are going to delete the

relief of partition itself in respect of their share in the suit properties. The Defendant Nos. 3 and 4 have contended that plaintiffs and defendants 1

and 2 have created partition deed in order to defeat their right. But defendants 3 and 4 are at liberty to take such contention by filing additional

written statement in the event amendment is allowed and will no way prejudice the case of defendants 3 and 4. Accordingly application came to be

allowed.

The provisions of Order XXIII Rule 1 of Code of Civil Procedure stipulates that at any stage of the proceedings, plaintiffs may as against all or

any of the defendants abandon his suit or abandon a part of his claim. Admittedly, in the present case, in view of the subsequent development i.e.,

partition dated 25.06.2009, plaintiffs did not want to press the prayer for partition. The plaintiff is the master of his case. It is for the plaintiff to

proceed or not proceed with the case. In view of the provisions stated supra, the Trial Court is justified in passing the impugned order.

In view of the above, the petitioner has not made out any ground to interfere with the impugned order, in exercise of powers under Article 227

of the Constitution of India. Accordingly, Writ Petition is dismissed.

However, since the suit is now posted for arguments and taking into consideration the fact that the suit is of the year 2005 and now we are in

the year 2017, the Trial Court is directed to expedite the suit, subject to co-operation by both the parties to the lis in accordance with law.