Rukkamma vs Muniyellappa

A.S. Bopanna, J.—Petitioners are before this Court, assailing the order dated 9.7.2014 passed on IA No. 12 in OS No. 7056/2007 impugned at Annexure-F to the petition.

Petitioners herein are defendants No. 1 to 5 to the said suit. The plaintiffs during the pendency of the suit have filed an application under Order 6 Rule 17 of CPC, seeking to amend the prayer portion made in the plaint, to delete a portion of the prayer [c] to the plaint. The petitioners herein had opposed the said application.

The Court below by the order dated 9.7.2014 has allowed the application in IA No. 12 and permitted the amendment.

Learned Counsel for the petitioners, while assailing the said order, with reference to the decisions of the Hon''ble Supreme Court, which were cited before the trial court itself, would contend that the Court below has not appropriately considered the aspect relating to amendment subsequent to the restriction placed by amendment made to the Civil Procedure Code. It is contended that at such belated stage, after commencement of the trial, the Court below ought not to have allowed the said application.

Learned Counsel would further refer to the portion of the order where the Court below itself has made an observation that the plaintiffs were not alert in seeking the amendment earlier, yet has allowed the application. Hence, it is contended that the order is not sustainable. Furthermore, reference is made to the averments made in the affidavit accompanying the application to contend that the reason for which the amendment has been sought would indicate as if the plaintiffs are altering the case which they had put forth earlier. Hence, it is contended that the order impugned is liable to be set aside.

On the aspect relating to the legal position, there can be no more dispute whatsoever. At a period subsequent to the decisions which have been relied upon by learned Counsel for the petitioners, the Hon''ble Supreme Court has also held that even after commencement of the trial, if due diligence is proved, such an application would be permitted. It is no doubt true that the observation of the trial court may lead to the conclusion that the plaintiffs were not diligent in seeking for amendment. Even if that be so, what is necessary to be noticed in the instant case, is the nature of amendment that had been sought. To appreciate this aspect, the prayer as contained in column [c] of the prayer column, would indicate that the alternate relief that was sought for by the plaintiffs was that if the court comes to the conclusion that the plaintiffs are not in possession of the schedule property, a direction be made to hand over possession. By the present amendment, all that has been sought to be deleted is the phrase "that if the court comes to the conclusion that the plaintiffs are not in possession of the property". To explain the reason for such amendment, the plaintiffs have indicated in the affidavit that during the course of the matter being considered by the court below, the plaintiffs were unable to produce any documents to show that the plaintiffs are in possession of the property. In that view, the prayer that is being limited is directly to seek the relief of possession instead of allowing the court below to come to the conclusion on that aspect of the matter relating to possession. Hence, such amendment even if allowed after the commencement of the trial would not alter the situation. Therefore, I am of the view that the order impugned does not call for interference.

Accordingly, petition stands disposed of.