Sharanabassappa vs Mallikarjun

B.S. Patil, J.—Petitioners are the defendants in O.S. No. 126/2010. When the matter was posted for evidence of the defendants, they made an application under Order VI Rule 17 CPC seeking amendment of the written statement. They sought for deletion of the word "Gift" used in 8th and 9th lines of the written statement and for substitution of the same by the word Will'' with an explanation that the Will was executed in favour of the mother of the defendants and the mother of the defendants had expired. They also sought to explain that original of the Will had been lost during the lifetime of the mother and hence, the Court be pleased to permit the defendants to lead secondary evidence. This application was resisted by the plaintiff.

The Trial Court has dismissed the application holding that as per the provisions of Order VI Rule 17 CPC as amended, no application for amendment should be allowed after the trial commenced, unless the Court came to the conclusion that inspite of due diligence, the party could not raise the matter before commencement of trial.

I have heard the learned counsel for both parties and perused the pleadings and the order under challenge.

The trial Court has not considered the nature of the amendment sought. It is the case of the defendants that under a registered Will, a portion of the property comprised in Sy. No. 152 had been bequeathed in favour of the mother of the defendants. The case made out before the trial Court in the interim application is that due to inadvertence, instead of referring to the transaction-as Will, the same had been referred to as gift. If the transaction has been evidenced by a registered Will executed in favour of the mother, it is for the defendants to establish the same during the course of evidence.

Merely because the transaction was inadvertently referred to as gift, instead of referring to it as Will, there is no justification to deny the amendment sought. Such a hyper technical approach in rejecting the amendment would lead to injustice and will come in the way of ascertaining the truth involved in the matter. The ultimate aim of the adjudication in a dispute like this is to unearth the truth. On such technical grounds, if amendments of this nature are disallowed, it will result in failure of justice.

It is true, as per the proviso to Order VI Rule 17 CPC, due diligence is required to be established. In the instant case, the explanation is that due to inadvertence, the transaction was referred to as gift, instead of Will. This explanation offered discloses that the mistake has occurred despite due diligence and the mistake is attributable to the drafting.

Hence, to the extent stated above, the application deserves to be allowed. Accordingly, this writ petition is partly allowed. Impugned order is set aside. Amendment sought insofar as it pertains to mention being made to the transaction in 8th and 9th line of the written statement as "Gift Deed", instead of Will'' is allowed. However, it is further made clear that whether the secondary evidence of the transaction can be entertained has to be determined as and when the document is sought to be marked in evidence and the parties will have an opportunity to address their arguments on the same.