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The Karnataka High Court has recently made it clear that Plaintiff's request for a plaint amendment may be taken into account even after the trial has begun if the suit's fundamental elements remain the same and the Defendant party is not prejudiced. As a result, after further cross-examination of the plaintiffs, a single judge bench of Justice Sachin Shankar Magadum granted an application submitted by a plaintiff under Order 6 Rule 17 in a partition suit.
Facts
The present petitioners have instituted a suit for partition and separate possession by specifically contending that suit schedule properties are joint family ancestral properties. The petitioners claim that they are entitled for 1/5th share in the suit schedule properties. The petitioners have also sought relief of declaration to declare that the judgment and decree passed is not binding on their legitimate share. Consequently, sale deed was executed by defendant Nos.1 and 2 in favour of defendant No.6 are also challenged.
When the matter was set in for further cross-examination of plaintiffs, the present petitioners have come up with this proposed amendment. By way of proposed amendment, plaintiffs intend 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 want to further plead that judgment and decree passed is a collusive decree which was passed on a fraudulent registered sale agreement. The said contention is rejected by the Trial Court.
Hence, the present petition is file under Article of the Constitution f India to quash the order passed by the Trial Court
Contention Made before the Trial Court
Petitioner: The plaintiffs by way of proposed amendment want to further plead that judgment and decree passed is a collusive decree which was passed on a fraudulent registered sale agreement. The plaintiffs also intend 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.
As a result, the court moved forward with the case while taking note of the petitioner's submission before the Trial Court.
Court Observation
The Bench observed that, it is trite law that all amendments are to be liberally allowed relegating the parties to substantiate their claim even in respect of proposed amendment.
The Bench further observed that, 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. Mere allowing the amendment application in itself would not amount to granting the relief sought in the propose amendment. The burden still remains on the plaintiffs to establish the claim made in the proposed amendment.
Judgment
After considering the material on record court set aside the judgment of Trial Court and consequently allowed the petition.
The HC further allowed the petitioner to amend the Plaint and held that no serious prejudice will be caused to the respondents/defendants if the proposed amendment is allowed and respondents/defendants are allowed to lead rebuttal evidence insofar as proposed amendment is concerned.
Case: Rekha & Others. vs. Lalithamma & Others
Citation: W.P. NO. 55337 OF 2018(GM-CPC)
Bench: Justice Sachin Shankar Magadum
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