Muthaiah and Others vs Venkatesh and Others

B. Manohar, J.—Petitioners are the plaintiffs in O.S. No. 122/2004 on the file of Principal Civil Judge and JMFC, Tumkur. Being aggrieved by the order dated 17.04.2013 rejecting I.A. No. 9 filed under Order 6 Rule 17 of CPC, the petitioners have filed this writ petition.

Petitioners had filed a suit seeking for permanent injunction restraining the 1st defendant from interfering with the peaceful possession and also withdrawing the suit schedule item Nos. 2 and 3 i.e., the fixed deposit in the 7th defendant Corporation Bank. The contesting defendant entered appearance and filed written statement in the year 2004 itself, denying the right and title of the petitioners over the suit schedule properties. On the basis of the pleadings of the parties, issues have been framed, parties went for trial. The plaintiff No. 4 was examined as P.W. 1 in the year 2006 itself. Thereafter, several I.A''s have been filed. After disposal of the IA''s, the defendants lead evidence. During the course of the trial, the plaintiffs filed I.A. No. 9 under Order 6 Rule 17 of CPC, seeking for amendment of the plaint, incorporating Para No. 1(a) and para No. 2(a), which reads as under:

"To declare that the plaintiffs are in possession and enjoyment of the suit schedule item No. 1 as joint owners including the defendants No. 2 to 6 and the alleged will as stated in the written statement is concocted, created and forged and also manipulated, the same is not binding on the plaintiffs.

Para No. 2(a):

To declare that the plaintiffs are entitled to withdraw the suit schedule item No. 2 and 3 from the respective banks as they are legal heirs of the deceased Gangamma."

The said application was opposed by the defendants, contending that at this length of time, the plaintiffs cannot seek amendment of the plaint. The suit has been filed in the year 2004. The written statement also filed in the year 2004 and the defence of the defendant was made known to the plaintiffs. After lapse of eight years, on the verge of the completion of trial, the application has been filed. The said application cannot be allowed and sought for dismissal of the application. The Trial Court after examining the matter in detail held that there is no due diligence on the part of the plaintiffs. Though the defendants denied the title of the plaintiffs in the year 2004 itself the petitioners have kept quiet and after lapse of eight years, they have filed this application seeking for amendment of the plaint. Accordingly, said application has been dismissed. Being aggrieved by the same, the present writ petition has been filed.

I have carefully considered the arguments addressed by the learned counsel appearing for the petitioners and perused the order impugned and other relevant records.

The records clearly disclose that the plaintiffs filed the suit for bare injunction, restraining the defendant No. 1 from withdrawing the suit schedule item Nos. 2 and 3 properties. The defendants entered appearance and filed written statement denying the title of the plaintiffs over the suit schedule properties. The parties went for trial. On the verge of conclusion of the trial, the petitioners filed application seeking amendment of the plaint and also for possession and declaration as joint owners. The amendment sought will change the cause of action and nature of the suit that too after lapse of eight years, this application has been filed. At this fag end of the trial, the amendment cannot be permitted. The plaintiffs are not diligent in making an application for amendment. The trial Court relying on the judgment of this Court in Smt Gowradevi S Orekondy and Others Vs. K.B. Rudrappa and Others, dismissed the application. I do not find any infirmity or irregularity in the order passed by the trial Court and the petitioners have not made out a case for interference.

Accordingly, writ petition is dismissed.