K.SHANTHALAKSHMI Vs. SHARADHA

JUDGEMENT

(1.) The captioned writ petition is filed by the plaintiffs questioning the order dtd. 27/6/2022 passed by the learned 72nd Additional City Civil and Sessions Judge (CCH-73), Bengaluru on I.A.No.1/2022 filed under Order 6 Rule 17 of CPC in O.S.No.26317/2012, as per Annexure-D wherein the petitioners amendment application seeking amendment of plaint, is deferred by holding that it will be considered along with the main matter.

(2.) The petitioners/plaintiffs have instituted a suit for partition and separate possession. By proposed amendment, the petitioners want to restrict their claim in respect of item No.2, admitting the alienation made by their father i.e., defendant No.1 in favour of third party. The said application is not contested by the other contesting defendants. Under the proposed amendment, petitioners want to exclude an extent of 3900 sq.ft in item No.2, on the premise that father has alienated and therefore, plaintiffs are not entitled for share. The petitioners also by way of amendment averred that they have consented for the sale deed.

(3.) The learned Trial Judge ought to have allowed the application. However, he deferred it to be heard along with the main matter. There was an error in procedure adopted by the learned Trial Judge. If plaintiffs want to restrict their claim in respect of item No.2, the learned Trial Judge erred in deferring the orders on amendment application. Since, the matter is now posted for judgment, the learned Trial Judge cannot proceed without passing orders on an amendment application. The application is liable to be allowed and therefore, the impugned order is not at all sustainable. Before pronouncing the judgment, the learned Trial Judge shall pass orders after hearing both the parties.