M.Revanna vs Anjanamma (Dead) By Lrs.

M. REVANNA ...APPELLANT VERSUS ANJANAMMA (DEAD) BY LRS. & ORS. ...RESPONDENTS

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The order dated 09.04.2010 passed in Writ Petition No.

2266 of 2009 (GM­CPC) by the High Court of Karnataka is called

in question in this appeal.

3. The appellant herein was Plaintiff No. 1 in the suit being

O.S No. 2611/1993 filed seeking partition and separate

possession of joint family properties. Plaintiff Nos. 1 to 5,

including the appellant herein, filed the said suit seeking

partition and separate possession of joint family properties to the

extent of 1/6th share to Plaintiff Nos. 1 to 3, 1/6th share to 1 Plaintiff No. 4 and 1/6th share to Plaintiff No. 5. Initially, only

three defendants were made parties to the suit. Immediately

upon the appearance of Defendant Nos. 1 to 3, a compromise

petition was filed on behalf of Plaintiff Nos. 1 to 5 and Defendant

Nos. 1 to 3, contending that the plaintiffs and defendants had

divided the joint family and ancestral properties as per the

memorandum of partition dated 18.05.1972 under the Panchayat

Parikath. The compromise petition came to be filed in the Trial

Court on 22.04.1993. The Defendant Nos. 4 to 6, who also belong

to the same family as the persons mentioned above, having come

to know about the filing of the compromise petition in the suit for

partition, and also having come to know that they were not

parties to the suit, filed an application for impleadment and

opposed the compromise petition, contending specifically that the

joint family properties had not been divided at any point of time

and that the family, as well as its properties, continued to be

joint. However, the Trial Court vide order dated 04.06.1994

dismissed the suit as having been compromised. The said order

of the Trial Court was questioned by Defendant No. 6 before the

High Court by filing RFA No. 297/1994 and after hearing, the

High Court set aside the order dated 04.06.1994. Consequently,

2 the suit being O.S. No. 2611/1993 was restored on the file of the

Trial Court. The High Court directed the Trial Court to dispose of

the suit on merits. After remand, the original Defendant No. 6

was transposed as Plaintiff No. 6 in the suit. The present

Respondent No. 1 is the transposed Plaintiff No. 6 in the suit.

(Respondent No. 1 expired during the pendency of the appeal

herein and her legal heirs have been brought on record).

4. After remand, Plaintiff Nos. 1 to 5 did not adduce any

evidence initially. However, Plaintiff No. 6/Respondent No. 1

herein adduced evidence on 02.07.2003 and was thoroughly

cross­examined by Plaintiff Nos.1 to 5. Though Plaintiff No. 1

tried to give evidence as PW­2, he did not make himself available

for cross­examination from 2003 to 2007. Consequently, he was

discharged by the Trial Court. However, after prolonged

adjournments, PW­2 made himself available and was

cross­examined on 12.02.2008. Thereafter, on 01.09.2008,

Plaintiff Nos. 1 to 5 made an application being I.A. No. 22 under

Order VI Rule 17 of the Code of Civil Procedure (for short, “the

CPC”) for amendment of the plaint, pleading that a prior partition

had taken place as per the memorandum of partition dated

18.05.1972, as mentioned supra. The Respondent No. 1 herein

3 and the other two contesting defendants, i.e. Defendant Nos. 4

and 5 objected to the amendment application, contending inter

alia that the application for amendment of the plaint is not only

highly belated but also not bona fide, and that at no point of time

was there any partition among the family members. The Trial

Court, however, proceeded to allow the application for

amendment by the order dated 14.11.2008, which came to be set

aside by the High Court by the impugned order dated

09.04.2010. Hence, this appeal by the unsuccessful Plaintiff No.

1. It is relevant to note that Plaintiff Nos. 2 to 5 acting through

Plaintiff No. 1 have accepted the order rejecting the amendment

application.

5. Leave to amend may be refused if it introduces a totally

different, new and inconsistent case, or challenges the

fundamental character of the suit. The proviso to Order VI Rule

17 of the CPC virtually prevents an application for amendment of

pleadings from being allowed after the trial has commenced,

unless the Court comes to the conclusion that in spite of due

diligence, the party could not have raised the matter before the

commencement of the trial. The proviso, to an extent, curtails

absolute discretion to allow amendment at any stage. Therefore,

4 the burden is on the person who seeks an amendment after

commencement of the trial to show that in spite of due diligence,

such an amendment could not have been sought earlier. There

cannot be any dispute that an amendment cannot be claimed as

a matter of right, and under all circumstances. Though normally

amendments are allowed in the pleadings to avoid multiplicity of

litigation, the Court needs to take into consideration whether the

application for amendment is bona fide or mala fide and whether

the amendment causes such prejudice to the other side which

cannot be compensated adequately in terms of money.

6. As mentioned supra, the suit was filed in the year 1993 and

at that point of time, Defendant Nos. 4 to 6 were not made

parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to

3 were the only parties. They had filed a joint memorandum for

the dismissal of the suit on 22.04.1993, which was within one or

two months of the filing of the suit. The compromise petition

came to be rightly dismissed by the High Court in RFA No.

297/1994. In the compromise petition, curiously, it was noted

that the joint family properties were divided by metes and bounds

in the year 1972. If the partition had really taken place in the

year 1972 and was acted upon as per the Panchayat Parikath,

5 then Plaintiff Nos. 1 to 5 would not have filed a suit for partition

and separate possession in the year 1993. Be that as it may, it is

clear from records that the suit was being prolonged on one

pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the

application for amendment of the plaint came to be filed on

01.09.2008. By that time, the evidence of both the parties had

been recorded and the matter was listed for final hearing before

the Trial Court. If there indeed was a partition of the joint family

properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from

making the necessary application for the amendment of the

plaint earlier. So also, nothing prevented them from making the

necessary averment in the plaint itself, inasmuch as the suit was

filed in the year 1993. Even according to Plaintiff Nos. 1 to 5,

they came to know about the compromise in the year 1993 itself.

Thus, there is no explanation by them as to why they did not file

the application for amendment till the year 2008, given that the

suit had been filed in 1993. Though, even when Plaintiff Nos. 1

to 5 came to know about the partition deed dated 18.05.1972

(Panchayat Parikath) on 22.04.1993, they kept quiet without

filing an application for amendment of the plaint within a

reasonable time. On the contrary, they proceeded to cross

6 examine PW­1 thoroughly and took more than five years’ time to

get the examination of PW­2 completed, and only thereafter filed

an application seeking amendment of the plaint on 01.09.2008,

that too when the suit was posted for final arguments. As

mentioned supra, the suit itself is for partition and separate

possession. Now, by virtue of the application for amendment of

pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition

had already taken place in the year 1972 and they are not

interested to pursue the suit. Per contra, Plaintiff No.

6/Respondent No.1 herein wants to continue the proceedings in

the suit for partition on the ground that the partition had not

taken place at all.

7. Having regard to the totality of the facts and circumstances

of the case, we are of the considered opinion that the application

for amendment of the plaint is not only belated but also not

bona fide, and if allowed, would change the nature and character

of the suit. If the application for amendment is allowed, the

same would lead to a travesty of justice, inasmuch as the Court

would be allowing Plaintiff Nos. 1 to 5 to withdraw their

admission made in the plaint that the partition had not taken

place earlier. Hence, to grant permission for amendment of the

7 plaint at this stage would cause serious prejudice to Plaintiff No.

6/Respondent No. 1 herein.

8. Accordingly, the order of the High Court quashing the order

of the Trial Court dated 14.11.2008, which had allowed the

application for amendment of the plaint, is hereby confirmed.

The appeal fails and is hereby dismissed.

…..

……………………………..J. [ N.V. Ramana]

…..……………………………..J. [Mohan M. Shantanagoudar] New Delhi;

February 14, 2019.

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