IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P. No. 40750 OF 2014 (GM-CPC) BETWEEN SMT SUMITHRA W/O LATE K.R.MANJUNATH @ MANAJAPPA, AGE:36 YEARS, R/O HARAMAGHATTA VILLAGE, SHIMOGA TALUK AND DISTRICT. ... PETITIONER (BY SMT. MANJULADEVI R KAMADOLLI) AND 1. RANGAPPA S/O SIDDAPPA, SINCE DECEASED BY HIS LRS, 1a. RATHNAMMA, W/O RANGAPPA, AGE:62 YEARS, R/O GIRIYAPUR VILLAGE, SANTHEBENNUR 1ST HOBLI-577 552, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
1b. PRABHU, S/O RANGAPPA, AGE:42 YEARS, R/O GIRIYAPUR VILLAGE, SANTHEBENNUR 1ST HOBLI-577 522, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
2. GANGAPPA S/O SIDDAPPA, AGE:73 YEARS, R/O KOLAHALLU VILLAGE, BHARAMA SAGARA HOBLI-577 519, CHITRADURGA TALUK AND DISTRICT.
3. NAGARAJAPPA S/O SIDDAPPA, AGE:67 YEARS, R/O KOLAHALLU VILLAGE, BHARAMA SAGARA HOBLI-577 519, CHITRADURGA TALUK AND DISTRICT.
4. GURUSHANTHAPPA S/O SIDDAPPA, AGED:64 YEARS, R/O KOLAHALLU VILALGE, BHARAMA SAGARA HOBLI-577519, CHITRADURGA TALUK AND DISTRICT.
5. CHANDRAPPA S/O SIDDAPPA, AGED:61 YEARS, R/O KOLAHALLU VILALGE, BHARAMA SAGARA HOBLI-577519, CHITRADURGA TALUK AND DISTRICT.
6. NINGAMMA W/O MAHALINGAPPA, MAJOR, R/O KOLAHALLU VILLAGE, BHARAMA SAGARA HOBLI-577519, CHITRADURGA TALUK AND DISTRICT.
7. SHANTHAMMA W/O LATE BASVARAJAPPA, MAJOR, R/O KOLAHALLU VILLAGE, BHARAMA SAGARA HOBLI-577519, CHITRADURGA TALUK AND DISTRICT.
8. SHASHIKALA W/O ESHWARAPPA @ ANGADI ESHWARAPPA, MAJOR, R/O GIRIYAPUR VILLAGE, SANTHEBENNUR 1ST HOBLI-577552, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
9. K G ANANDAPPA S/O GANGAPPA, MAJOR, R/O D.NO.568/19/211, SARASWATHI BADAVANE, NITTUVALLI, DAVANAGERE CITY, DAVANAGERE-577002.
10. K G KENCHAVEERAPPA S/O GANGAPPA, MAJOR, R/O D.NO.568/19/211, SARASWATHI BADAVANE, NITTUVALLI, DAVANAGERE CITY, DAVANAGERE-577002. ... RESPONDENTS (BY SRI. N. R. NAIK, ADVOCATE FOR R2 TO R5 SRI. A.D. RAMANANDA, ADVOCATE FOR R9 & R10) R1(A), R1(B), R7 AND R8 ARE SERVED R6 IS HELD SUFFICIENT.
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGED ORDER PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND J.M.F.C, CHANNAGIRI IN O.S.No.62/2010 ON I.A.No.VII DATED 01.07.2014 VIDE ANNEXURE-G AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner-plaintiff has filed a suit for partition in O.S.No.62/2010 invoking the writ jurisdiction of this Court for assailing the order dated 01.07.2014, a copy whereof is at Annexure-G made by the trial Court, whereby her application in I.A.VII filed under Order VI Rule 17 read with Section 151 of CPC, 1908 for amendment of plaint, has been dismissed. After service of notice, the respondents have entered appearance through their learned counsel who resists the writ petition.
2. Learned counsel for the petitioner-plaintiff Smt.
Manjula Kamadolli, contends that the said application has been rejected with an erroneous assumption of law that the trial of the suit begins once the issues therein are framed and thus there is an error apparent on the face of the record warranting indulgence of this Court for setting the injustice occasioned thereby at naught. She further submits that even otherwise also the amendment ought to have been permitted, since petitioner in her affidavit supporting the application has narrated the circumstances as to impleadment of other defendants at a later stage and that she came to know of the properties that stand in their name only thereafter. Thus, she prays for allowing of the writ petition.
3. Learned counsel for the contesting respondent- defendant contends that the petitioner has filed this application after lapse of nearly five years after filing of the suit; her assertion that she was not in the know of these properties, which are now sought to be added to the prayer column, is not true; the fact that the owners of these properties are subsequently allowed to be impleaded as defendants does not come to the aid of the petitioner-plaintiff. So arguing, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers.
5. The suit is for a decree of partition and separate possession of the subject property; other persons who happen to be owners of the properties now sought to be introduced by way of amendment to the prayer column of the plaint are permitted to be impleaded as defendants at a later stage; the version of the petitioner-plaintiff that she came to know of these new additional properties in the recent past gains prima facie acceptance, the contra contention of the other side having not been substantiated.
6. The trial Court has rejected the petitioner’s application for amendment of the plaint mainly on an erroneous assumption of law that once the issues are framed, trial is deemed to have commenced. The proviso to Order VI Rule 17 of CPC, 1908 reads as under:
“… Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.”
7. Age old Rule 17 which was invoked invariably in every suit, appeal or proceedings by unscrupulous parties for amending the pleadings designed to protract the same indefinitely came to be omitted by the CPC (Amendment Act of 1999) so that the right to amend the pleadings is not abused. This provision which was deleted by the Parliament with intend to shorten the litigation and speed up the decision in the cases evoked much controversy resulting into agitations, strikes and boycott of Courts allover the Country. Therefore, a new proviso has been added to the Rule by CPC Amendment Act, 2002 restoring Right to Amend the pleadings of course, subject to restrictions as enacted in the aforesaid proviso.
8. The expression “no application for amendment shall be allowed after the trial has commenced…” had fallen for consideration of several High Courts which did not have unanimity of opinions. The Apex Court after surveying the Law has held that ordinarily the trial of a suit begins after the issues are framed, the case is fixed for hearing and the party having right to begin is to produced his evidence. Paragraph No.17 of the Apex Court decision in the case of Mohinder Kumar Mehra Vs. Rooprani Mehra 2018 (2) SCC 137 reads as under:
“ 17. Although Order 6 Rule 17 permits amendment in the pleadings “at any stage of the proceedings”, but a limitation has been engrafted by means of proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the court’s jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the mater before the commencement of trial. In a suit when trial commences? Order 18 CPC deals with “hearing of the suit and examination of witnesses”. Issues are framed under Order 14. At the first hearing of the suit, the court after reading the plaint and written statement and after examination under Rule 1 of Order 14 is to frame issues. Order 15 deals with “disposal of the suit at the first hearing”, when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.”
9. In the present case, suit of the petitioner has not advanced to the stage of trial; the petitioner has explained that despite due diligence she did not have the knowledge of the properties now sought to be introduced to the prayer column of the plaint in due course. No prejudice will be caused to the other side if the amendment is allowed; conversely lot of prejudice will be occasioned to the petitioner -plaintiff in this partition suit, should be amendment be not allowed. Apparently there is an error on the face of the impugned order.
10. In the above circumstance, this writ petition succeeds but with a cost of Rs.1,000 payable by the petitioner to the respondents herein who shall apportion it equally; the impugned order dated 01.07.2014 is set aside; the petitioner’s application in I.A.No.7 for amendment of the plaint is favoured by granting leave. Petitioner to file amended plaint within four weeks, where upon the other side will have an option to file their pleadings.
Sd/- JUDGE NR/-