SAROJAMMA Vs. A.Y. ANILKUMAR

JUDGEMENT

(1.) The petitioners, who are the defendants in O.S.No.170/2014 on the file of the Senior Civil Judge and JMFC, Sakaleshapura (for short the 'civil Court'), have impugned the civil Court's order dtd. 29/11/2019. The civil Court by this order has rejected the petitioners' application (IA.VIII) under Order VI Rule 17 CPC. The petitioners propose to amend their written statement. The petitioners have contended that their site No.17 is bounded on the north by respondent-plaintiff's property, and by the proposed amendment, they want to correct this statement to read that their site is bounded on the south by the respondent's property.

(2.) The civil Court has rejected the petitioners' application primarily on the ground that the issues have been framed and the petitioners, who seek amendment of their written statement after the issues are framed, have not established due diligence as required under Proviso to order VI Rule 17 of CPC. The civil Court, it must be observed, has also opined that the amendment would take away the respondent's accrued right.

(3.) The learned counsel for the petitioners, while drawing attention of this Court to the description of the respondent's property in the plaint schedule which is mentioned as bearing khata No.2855/2594, submits that even the respondent is categorical that the petitioners' property is to the northern side of his property and the petitioners also admit the same. However, as stated in their affidavit accompanying the application by a typographical error, the petitioners have mentioned that the respondent's property is to the north of their property; and because of the admitted position, the description of the petitioners' property must be that it is bound on the south by the respondent's property. The learned counsel emphasizes that the controversy is essentially about whether the respondent is seeking injunction including the petitioners' property.