BASAVARAJ  [Appellant(s)] Vs.  INDIRA AND OTHERS   [Respondent(s)]

CIVIL APPEAL NO. 2886 OF 2012

(2JB, C.T. RAVIKUMAR and RAJESH BINDAL JJ., delivered by Rajesh Bindal, J.)

Facts: When the suit was at the far end, an application was filed by respondents No. 1 and seeking amendment of the plaint. The amendment sought was to add prayer in the suit for a declaration that an earlier compromise decree dated 14.10.2004 was null and void. As prayer was not made earlier, the court fee required thereon was also sought to be affixed. The ground on which the amendment was sought was that due to oversight and mistake, the respondents No. 1 and 2/plaintiffs were unable to seek the relief of declaration. No prejudice as such would be caused to the defendants as limited relief is for fair partition of the ancestral property. The Trial Court dismissed the application. However, when the order5 was challenged before the High Court, the same was set aside and the amendment prayed for by the plaintiffs was allowed subject to payment of costs.

Issue: Whether the present appeal is maintainable in the present facts of the case?

Arguments on behalf of counsel for appellant:

Learned counsel for the appellant submitted that in the case in hand, there was a family partition in Original Suit No. 401 of 2003 filed by Smt. Mahadevi and Smt. Sharnamma, wife and daughter-in-law respectively of defendant No.1/Shivasharnappa, impleading the plaintiffs and the defendants as party. A compromise decree passed by the Lok Adalat, District Legal Services Authority, Gulbarga. Thereafter, respondents No. 1 and 2 filed a fresh suit in 2005 seeking partition of the ancestral property. Though in the suit pleading was there with reference to the earlier compromise decree, however for the reasons best known to the plaintiffs, no challenge was made to the same. As a result of the order passed by the High Court, the nature of the suit was changed from partition to declaration, which is impermissible. Further in terms of proviso to Order VI Rule 17 CPC, no amendment could be allowed after commencement of the trial.

Arguments on behalf of counsel for respondent:

In response, learned counsel for respondents No. 1 and 2 submitted that it was merely an oversight mistake which occurred at the time of filing of the suit and at the subsequent stage for which the amendment was prayed for by respondents No. 1 and 2. It is not a case where the pleadings to that effect are not available on record. Respondents No. 1 and 2 had fairly pleaded about the earlier compromise decree. Inadvertently, the prayer for declaration thereof as null and void could not be made. The court fee also could not be deposited. No fresh evidence is to be led. The case is at the arguments stage. The same can be argued with mere re-framing of the issues. It will avoid multiplicity of litigation and ultimately complete justice will be done amongst the parties, who are merely praying for partition of the ancestral property. The other side can be compensated with costs, as was even done by the High Court. No prejudice as such will be caused to the appellant.

Held: The court allowed the present appeal and held that, “Proviso to Order VI Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of respondents No. 1 and before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.”