Mathew Joseph vs N. Radhakrishnan

V. Chitambaresh, J

The suit is one for declaration of a right of easement over a pathway. The second defendant was later removed from the party array since he had assigned away his right to the first defendant. The plaintiff had sought relief only in regard to the pathway. But the pathway started from the property of the wife of the plaintiff lying adjacent. This is clear from the report dated 10.11.2011 of the Advocate Commissioner. The proof affidavit of the plaintiff was filed on 06.02.2012 and the cross-examination commenced on the same day. The same continued on 07.02.2012 also. Thereafter the plaintiff filed an application for amendment of the plaint. The wife of the plaintiff was sought to be impleaded as the additional second plaintiff and her property also sought to be incorporated in the plaint schedule.

The court below has by the order impugned allowed the application for amendment. This was subject to the condition that the plaintiff pays a sum of Rs. 1,500/- as costs to the defendant. This order is impugned by the defendant in this Original Petition. The defendant contends that the amendment is hit by the proviso to Order VI Rule 17 of the Code of Civil Procedure. Heavy reliance is placed on the decision in Samuel J and others Vs. Gattu Mahesh and others [2012 (1) KHC SN 14 (SC)].

Order VI Rule 17 of the CPC is not an absolute embargo to allow amendment of the pleadings after the trial commences. It is sufficient if the plaintiff satisfies the court that he could not take steps earlier notwithstanding the exercise of due diligence. The plaintiff has specifically pleaded in the application for amendment that this omission was noticed only at the time of evidence. There was also a talk of settlement preceding the listing of the case which allegedly distracted his attention.

I should immediately take note that the relief is sought only in respect of the pathway. The plaintiff does not seek any new relief in respect of the property of his wife. The impleadment of the wife of the plaintiff as the second additional plaintiff is permissible. [See in this connection the decision in Bal Niketan Nursery School Vs. Kesari Prasad, ]. Therefore the court below was justified in allowing amendment of the plaint as sought. I however clarify that the amendment can have only prospective effect. In other words it will take effect only from the date on which the order allowing application for amendment is passed. Therefore evidence already recorded on the basis of the unamended plaint cannot be effaced. The court below has exercised its discretion in fixing the costs as Rs. 1,500/-. I am not therefore tinkering with the discretion so exercised by the court below.

The order impugned by the court below is affirmed subject to the above reservation. The Original Petition is disposed of.