Sri. M. Ramachandran vs Smt. Dhanamma and Others

Budihal, R.B., J. - This writ petition is filed by; the petitioner-defendant requesting the Court to set aside the order dated 17.08.2015 passed on an application I.A.7 filed under Order 6, Rule 17 of C.P.C. pending on the file of XLIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-44).

Heard the arguments of the learned counsel appearing for the petitioner/defendant No. 1 and also the learned counsel appearing for the respondents/plaintiffs 1 to 3. The learned counsel for the petitioner during the course of the arguments made the submission that plaintiffs filed the suit for partition and separate possession of plaintiffs� legitimate share in the suit schedule properties. The petitioner/defendant No. 1 after appearance filed his written statement. It is also the submission made by the learned counsel appearing for the petitioner that in the written statement some contentions were taken with regard to the schedule property. He submitted that through mistake such contention was raised in the written statement and subsequently, after getting the documents the petitioner wanted to amend his written statement. The learned counsel submitted that trial Court rejected the said application holding that if the amendment application is allowed it will change the nature of the suit. The learned counsel submitted that it is not the amendment of the plaint, it is in respect of amending the written statement. Therefore, it will not change the nature of the cause of action of the suit.

The Learned counsel further made the submission with regard to the averments made in the written statement and the contentions taken in the amendment application though it is the view of the trial Court that the amendment is contrary to the original written statement, even then the trial Court should not have rejected the amendment application, because the defendant is permitted to such contrary defences in his written statement. Hence, the learned counsel submitted that rejection of his application by the trial Court is patently illegal and the said order is to be set aside by allowing the writ petition.

In support of his contentions he has relied upon the decision of the Hon''ble Apex Court in the matter of Basavan Jagu Dhobi v. Sukhnandan Ramdas Chaldhary, reported in 1995 Supp (3) SCC 179.

Per contra, the learned counsel appearing for the respondents/plaintiffs during the course of the arguments made the submission that after the suit summons are issued, the petitioner filed his written statement in the matter taking various contentions. There are some admissions in his written statement so far as schedule properties are concerned. The learned counsel also made the submission that by the proposed amendment defendant No. 1 set up a new plea, which is contrary to what is already stated in the original statement. The learned counsel further made the submission that this application was filed four years after filing of the original written statement, therefore, it is only with an intention to drag the proceedings. Hence, trial Court is justified in rejecting the said application, no illegality has been committed by the trial Court and there are no grounds for this Court to interfere with the order passed by the trial Court. Hence, the learned counsel submits that writ petition may be rejected.

I have perused the grounds urged in the written statement, impugned order passed by the trial Court on the proposed amendment application and also perused the pleadings of the parties, which are produced by the petitioner along with the petition i.e., plaint and written statement, so also the proposed amendment application and the supporting affidavit to the said application so far as the decision relied upon by the learned counsel appearing for the petitioner/defendant No. 1 is concerned. The suit is of the year 1995, much earlier to the amendment of the CPC in the year 2002. By amending the CPC in the year 2002, a proviso was inserted to Order 6, Rule 17 of CPC wherein it is provided that no amendment shall be allowed after trial has commenced, unless the Court comes to conclusion that in spite of due diligence in the matter, the party should not know about those facts. In the instant case, the defendant No. 1 contents that he was not knowing about the facts which he wanted to bring proposed amendment, so it was mandatory for the Court to satisfy about the exercise made by the party about the due diligence while considering the proposed amendment application provided if the application is filed after the commencement of the evidence in the matter, but admittedly in this case P.W.1 was cross-examined when the matter was posted for defendant�s evidence during that period the present application came to be filed. Therefore, it is the duty of the defendant No. 1 to satisfy the Court about the exercise of the due diligence and about the facts of which he wanted to amend by the proposed amendment. But looking to the affidavit and the contents of the said affidavit, there is no such specific pleading as such about defendant No. 1 exercising the due diligence in the matter and later filing the present application after the lapse of four years, that too, when the matter was set down for recording the defendant�s evidence.

Looking to the reasonings adopted by the trial Court, I do not find any infirmity or illegality in the order passed by the trial Court in rejecting the said application. There is no merit in the petition and same is hereby rejected.