Thomas George vs Gheevarghese George, Aniyan @ Thomas and Anila

Thomas P. Joseph, J.—Exhibit P5, order dated 05.01.2013 on I.A.No. 2945 of 2012 in O.S. No. 154 of 2009 of Munsiff''s Court, Pathanamthitta refusing to allow amendment of plaint after commencement of trial is under challenge. Petitioner filed O.S. No. 154 of 2009 for fixation of western boundary of item No. 1 with item No. 2 and recovery of possession of item No. 3 from respondents 1 to 3, on the strength of title and for other reliefs. After commencement of trial petitioner filed I.A. No. 2945 of 2012 to amend the plaint schedule, according to the petitioner to correct extent of property referred to therein. Item No. 3 which is sought to be recovered from the respondents was originally stated as 3 cents is now sought to be corrected as 1.500 cents. Similar corrections are sought with respect to other items also. Application was opposed by the respondents and dismissed by the learned Munsiff as per Ext. P5, order.

Learned counsel for petitioners contends that it is only in the course of trial that the discrepancy in the extent of property referred to in the plaint and reported by the Advocate Commissioner came to the notice of petitioner and that amendment is necessary to decide the real controversy between the parties.

Learned counsel for respondents while vehemently opposing the application, contended that lack of diligence on the part of petitioner is writ large in that it is only after commencement of trial that application for amendment was brought. It is contended that proviso to Rule 17 of Order VI of the CPC (for short, "the Code") is not complied and hence the court below was right in passing the impugned order.

It is admitted that application for amendment was filed only after commencement of trial. In view of the proviso to Rule 17 of Order VI of the Code petitioner has to show that in spite of exercise of due diligence he was not able to file the application on time. What exactly is due diligence and in what all circumstances even a diligent party/counsel may omit to file application for amendment on time are considered and decided by this Court in Eapen Antony Vs. Joseph and Another . It is pointed out that in a given case it may be in the course of trial that parties/counsel learns about deficiency in the pleadings. In the present case amendment of the plaint was sought for, based on report of the Advocate Commissioner. Having regard to the relevant aspects I am inclined to think that there was no lack of diligence on the part of petitioner and that in spite of exercise of due diligence, he was not able to file the application for amendment on time. I am satisfied that amendment is necessary to decide the controversy between the parties. If amendment is not allowed it will result in multiplicity and prolong proceedings. Hence I am inclined to interfere with Ext. P5, order and allow the application for amendment but having regarding to the facts and circumstances on terms of costs.

Resultantly, the Original Petition is allowed as under:

(i) Exhibit P5, order dated 05.01.2013 on I.A. No. 2945 of 2012 in O.S. No. 154 of 2009 of the Munsiff''s Court, Pathanamthitta is set aside and I.A. No. 2945 of 2012 is allowed on condition that petitioner pays/deposits in the court below for payment to the respondents Rs. 5,000/- (Rupees Five thousand only) as costs within three weeks from this day.

(ii) On compliance of the above condition I.A. No. 2945 of 2012 will stand allowed. Petitioner shall then carry out amendment within fourteen days from the date of payment/deposit of costs.

(iii) In case the above condition is not complied, this Original Petition will stand dismissed in confirmation of Ext. P5, order.