Venkatamma vs Thanamma

B. Manohar, J.—The petitioners are plaintiffs in OS No. 2849/2009 on the file of the City Civil Judge at Bangalore (CCH - 12). They being aggrieved by the order dated 14.3.2012 rejecting the application filed under Order 6 Rule 17 read with Section 151 of CPC have filed this writ petition.

The petitioners/plaintiffs filed the suit seeking for partition and separate possession in respect of suit schedule properties and also sought for permanent injunction restraining the 2nd defendant in alienating the suit schedule properties and also other reliefs. The contesting respondents/defendants have filed written statement to the said suit. On the basis of the pleadings of the parties, issues have been framed on 26.7.2003. The matter has been posted for evidence. After commencement of evidence, the petitioners filed an application under Order 6 Rule 17 of CPC seeking for amendment of plaint, which reads as under:

"1) To delete the Sy. No. 99/1 in the plaint ''B'' schedule and insert the Sy. No. 99/2 in its place.

2) To delete the extent i.e. 80'' x 60'' in the schedule ''C'' property and inserts its place an extent of East to West 32 feet and North to South 55''.

3) In prayer No. (a) - to delete the words "plaintiffs jointly are entitled for three eights (3/8th) share in the suit schedule property" and inserts in its place, "the plaintiffs are entitled for 1/10th share each in all the suit schedule properties".

The Trial Court after considering the matter in detail rejected the application on the ground that after commencement of trial, the application was filed. The amendment sought for will change the nature of the suit and give rise to new cause of action. Being aggrieved by the order impugned, the present writ petition is filed.

Sri H.C. Satish, learned Advocate for petitioners contended that the order passed by the Trial Court rejecting the application seeking for amendment of plaint is contrary to law. Learned Advocate submits that the property number has been wrongly mentioned as the property bearing Sy. No. 99/1 instead of mentioning as Sy. No. 99/2. Further the extent of land is also wrongly described as 80'' x 60''. In the prayer column, the petitioners sought for deletion of prayer No. (a). Learned Advocate submits that the amendment sought for will not change the nature or cause of action of the suit and sought for allowing the writ petition by setting aside the order passed by the trial Court.

On the other hand, learned counsel appearing for the contesting respondents argued in support of the order of the Trial Court and contended that the suit has been filed in the year 2000. After a lapse of 11 years, the application was filed seeking for amendment that too after commencement of trial and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the parties and perused the order impugned and other relevant records.

The records clearly disclose that the plaintiffs have filed the suit in the year 2000 seeking for partition and separate possession of suit schedule property and also permanent injunction restraining the 2nd defendant from alienating the said properties. The contesting respondents filed written statement denying the averments made in the plaint and also contended that the plaintiffs are not entitled for any share in the properties. The Trial Court after considering the pleading of the parties has framed the issues. The matter has been posted for evidence of plaintiffs. At that stage, the application was filed for amendment of plaint deleting Sy. No. 99/1 and incorporating Sy. No. 99/2 and dimension of the site and also to amend prayer No. (a). The amendment sought for will change cause of action and also the nature of the suit. The plaintiffs filed the application seeking for amendment of plaint 11 years after filing of the suit in the year 2000 that too after commencement of trial. They wanted to introduce new item of property, which is not permissible. The Hon''ble Supreme Court in Vidyabai and Others Vs. Padmalatha and Another, held that after commencement of trial, amendment cannot be allowed and that will change the nature and cause of action of the suit. The said judgment squarely applies to the case on hand. Hence, the amendment sought for cannot be allowed. The Trial Court after considering the matter in detail and referring to various judgments of the Supreme Court has passed the order impugned. The petitioners have not made out any case to interfere with the order impugned. Therefore, I find that there is no infirmity or irregularity in the order impugned. In the circumstances, I pass the following:

ORDER

The writ petition is dismissed.