Under challenge is Ext.P3 order whereby the court below has dismissed two applications filed by the petitioners namely, I.A.Nos.691 and 692 of 2013 in O.S.No.96/2010 before the Sub Court, Hosdurg by common order dated 13.06.2013. 2. I.A.No.691/2013 was filed to recall PW1 for examining further and I.A.No.692/2013 was a petition seeking amendment of the plaint. In both the petitions, the respondents have filed objections and the court below finding that there was an earlier amendment and the present amendment has been sought after PW1 has been cross examined and also holding that there is considerable delay in filing the second amendment, dismissed both the petitions.
3. As far as the order in I.A.No.691/2013 is concerned, it does not survive for consideration for the simple reason that the said person is no more. Coming to I.A.No.692/2013, all that the O.P.(C) No.2091/2013 2 court below has noticed is that there was considerable delay in filing the petition. There is no finding by the court below that by the amendment now sought to be made in the plaint, either the identity of the property or the extent of the property is changed.
4. Learned counsel appearing for the respondents pointed out that on an earlier occasion when the first amendment was sought for, the petitioners sought to amend the extent of the property and also its boundaries. That petition was allowed and it is the second time that the amendment is sought for that too after long delay.
5. According to the petitioners, the court below ought to have noticed that the mere delay in filing the amendment application by itself is not sufficient to dismiss the application if it is found that the amendment sought for is necessary for the proper adjudication of the issue. In the case on hand, identity of the property has been disputed. The petitioner point out that the amendment now sought for is only an attempt to correct the survey number and the boundaries in accordance with the Commissioner's report.
O.P.(C) No.2091/2013 3
6. The above claim of the petitioners is strongly refuted by the respondents who point out that the amendment now sought for by the petitioners is not as much different as it appears.
7. The core issue that arises for consideration was whether by changing the boundaries, the identity of the property is sought to be changed. If identity of the property is not sought to be changed, the mere fact that there was delay may not by itself be a ground to decline the prayer. This was the fact that need to be probed into by the court below.
For the above reasons, this original petition is allowed. The impugned order in I.A.No.692/2013 in O.S.No.96/2010 is set aside and the amendment application is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. While considering the amendment application, the objection filed by the respondents to the Commissioner's report shall also be taken into consideration.
smp P.BHAVADASAN JUDGE