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Judgment
C.S.Dias, J
Aggrieved by Ext.P4 orders dated 23.11.2021 passed in I.A.No.6/2021 in O.S.No.528/2015 of the Court of the Munsiff, Varkala, the second plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit.
The facts leading to Ext.P4 order, in a narrow compass, are: the petitioner is the power of attorney holder of the second plaintiff and the husband of the first plaintiff in the suit which is filed for declaration of title and other ancillary reliefs. There was an earlier suit filed by the plaintiffs against the respondents, which was dismissed. Now, the matter is pending before this Court in R.S.A.No.765/2021. The present suit is based on title of the plaint schedule property. During the pendency of the First Appeal in the earlier suit, the respondents had executed a partition deed and a sale deed in respect of the schedule property. It was in the above background, the petitioner filed Ext.P2 application, for leave to amend the plaint. The same was opposed by the respondents. The court below, by the impugned Ext.P4 order, dismissed Ext.P2 application. Ext.P4 is erroneous and wrong. Hence, the original petition.
Heard; Sri.K.B.Pradeep, the learned counsel appearing for the petitioner.
The question is whether there is any error in Ext.P4 order?.
Undisputedly, the application seeking leave to amend the plaint was filed after the closure of evidence.
The court below, taking note of the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908, held that the application is hit by the above proviso.
On an analysis of the pleadings and materials on record, there is no averment on record in the affidavit filed in support of Ext.P2 application to establish that the matter sought to be incorporated by way of amendment was not within the knowledge of the petitioner, despite due diligence, prior to the commencement of trial. Furthermore, I find that it is nearly a year since Ext.P4 order has been passed. There is whisper in the original petition explaining the reason for the belated challenge. I do not find any ground in the original petition to hold that the court below has overstepped its powers, warranting interference by this Court under Article 227 of the Constitution of India.
The original petition is meritless and is hence, dismissed at the threshold.