The Karnataka High Court has made it clear that a plaintiff's request for amendment of plaint can be considered even after commencement of trial, in case the fundamental character of the suit is not changed and no prejudice is caused to the responding party.
Observing thus, single judge bench of Justice Sachin Shankar Magadum allowed an application filed by a plaintiff under Order 6 Rule 17, in a suit for partition, after the matter was set in for further cross-examination of plaintiffs. It said:
"The proposed amendment does not change the fundamental character of the suit...Mere allowing the amendment application in itself would not amount to granting the relief sought in the proposed amendment. The burden still remains on the plaintiffs to establish the claim made...This Court is also of the view that no serious prejudice will be caused to the respondents/defendants if the proposed amendment is allowed."
Accordingly, it set aside the order passed by the trial court rejecting the application on the ground that the same was moved after commencement of trial.
The petitioners had instituted a suit for partition and separate possession, by specifically contending that suit schedule property are joint family ancestral properties. The petitioners claimed that they are entitled for 1/5th share in the suit schedule properties. The petitioners also sought relief of declaration to declare that the judgment and decree passed in O.S.No.61/1998 is not binding on their legitimate share.
Consequently, sale deed dated 26.04.2014 executed by defendant Nos.1 and 2 in favour of defendant No.6 was also challenged.
When the matter was set in for further cross examination of plaintiffs, the present petitioners/plaintiffs came up with the proposed amendment, whereby they intended to incorporate the pleadings relating to sale transactions done by defendant No.1 in favour of defendant No.5. The plaintiffs by way of proposed amendment wanted to further plead that judgment and decree passed in O.S.No.61/1998 is a collusive decree which was passed on a fraudulent registered sale agreement. The plaintiffs also intended to plead that there was no legal necessity for the defendant No.1 to enter into a transaction with defendant No.5 and further want to plead that defendant No.1 was addicted to vices.
The trial court rejected the application filed by the plaintiff noting that no sufficient cause is made out by the plaintiffs while seeking the amendment. The court found fault with the plaintiffs for not seeking amendment before commencement of trial. The application was rejected by recording a finding that plaintiffs cannot overcome the admissions elicited in cross-examination.
The bench on going through the amendment sought by the plaintiff said, "The proposed amendment does not change the fundamental character of the suit. It is trite law that all amendments are to be liberally allowed, relegating the parties to substantiate their claim even in respect of the proposed amendment."
It added, "Though this Court would find some laxness on the part of plaintiffs in not seeking amendment before commencement of trial but, however, to advance justice, a reasonable opportunity needs to be given to plaintiffs."
Then the court opined that,
"In a partition suit, valuable property rights are involved. If a property is a joint family ancestral property, it goes without saying that the members of a joint family have a pre-existing right and therefore, the Court drawing a preliminary decree merely declares the pre-existing right. It is in this background, this Court is not inclined to adopt a hyper technical approach and decline the plaintiffs in proving their case by incorporating the proposed amendment."
Further the court said, "This Court is also of the view that no serious prejudice will be caused to the respondents/defendants if the proposed amendment is allowed. As against this proposed amendment, it is always open for the respondents/defendants to file additional written statement. It is always open for the respondents/defendants to lead rebuttal evidence insofar as proposed amendment is concerned."
Accordingly it allowed the petition.
Case Title: REKHA & Others versus LALITHAMMA & Others
Case No: WRIT PETITION NO. 55337 OF 2018(GM-CPC)
Citation: 2022 LiveLaw (Kar) 228
Date of Order: 13TH DAY OF JUNE, 2022
Appearance: Advocate BASAVANNA.K.M, for advocate M V HIREMATH for petitioner; Advocate RAVINDRA BABU.G, FOR R2 & 3; Advocate SHAILESH, for Advocate C.GOWRISHANKAR, For R4)