P GUNASHEELAN Vs. R PREMA

JUDGEMENT

(1.) Respondents 1 to 5/Plaintiffs have filed O.S No. 15949/2000 in the City Civil Court, Bangalore, against the Petitioner and Respondent Nos. 6 to 8(a) to (e)/Defendants. The suit is for declaring that the Plaintiffs' together are entitled to 1/6" share in the suit schedule property and to put them in possession of their shares by metes and bounds and to hold an enquiry with regard to mesne profits. The Plaintiffs had filed O.S. No. 11229/1994 for the relief of partition and separate possession of 1/5th share in the suit schedule 'A', 'B', 'C' & 'D' properties. The said suit was decreed in part on 31.01.2005 entitling the Plaintiffs for 1/5 share in the plaint 'A' schedule property, The Defendants have contested the claim of the Plaintiffs in O.S. No. 15949/2000. Issues have been framed, PW-1 was examined and when the suit was for further evidence of the Plaintiffs, an application under Order 6, Rule 17 read with Section 151 Code of Civil Procedure was filed seeking permission of the Court to amend the plaint, incorporate additional pleadings as para No. 16(a) and additional schedule as schedule 'D' in the plaint. The Defendants filed statement of objections dated 29.06.2010 and opposed the prayer for amendment of the plaint. The Trial Court has allowed I.A. No. 10. Aggrieved, the 4th Defendant has filed this writ petition.

(2.) Sri A.G. Sridhar, learned advocate appearing for the Petitioner firstly contends that, the Impugned order is irrational, perverse and illegal. Trial of the suit having commenced and PW-1 having been examined, there being no due diligence shown by the Plaintiffs, in view of the proviso appended to Rule 17 of Order 6 Code of Civil Procedure, the application for amendment ought not to have been allowed. Secondly, the proceedings of OS No. 11229/1994 and the judgment & decree passed therein on 31.01.2005 has not been kept in view by the Trial Court. Thirdly, the fact that Sri K. Perumal held and enjoyed the 'D' schedule property as his absolute property and the execution of the Will dated 15.06.2004 by him in favour of Defendants 2, 3 & 4 has also not been kept in view. Lastly, the fact that 'D' schedule property has been sold by Defendants 2 to 4 under registered sale deed dated 28.02.2009 (Annexure-L), though was specifically pleaded in the statement of objections (pare 8) has not been kept in view. Learned Counsel submitted that, in the facts and circumstances of the case, the Impugned order is unsustainable.

(3.) Sri N. Surendra Kumar, learned advocate appearing for Respondents 1 to 5, on the other hand, by taking me through the impugned order submitted that, there is factual dispute, which is required to be adjudicated and hence, the Trial Court is justified in allowing the application by observing that the matter will be thrashed out during trial.