SHARANABASSAPPA Vs. MALLIKARJUN

JUDGEMENT

(1.) PETITIONERS are the defendants in O.S. No. 126/2010. When the matter was posted for evidence of the defendants, they made an application under Order VI Rule 17 CPC seeking amendment of the written statement. They sought for deletion of the word 'Gift' used in 8th and 9th lines of the written statement and for substitution of the same by the word Will' with an explanation that the Will was executed in favour of the mother of the defendants and the mother of the defendants had expired. They also sought to explain that original of the Will had been lost during the lifetime of the mother and hence, the Court be pleased to permit the defendants to lead secondary evidence. This application was resisted by the plaintiff.

(2.) THE Trial Court has dismissed the application holding that as per the provisions of Order VI Rule 17 CPC as amended, no application for amendment should be allowed after the trial commenced, unless the Court came to the conclusion that inspite of due diligence, the party could not raise the matter before commencement of trial.

(3.) THE trial Court has not considered the nature of the amendment sought. It is the case of the defendants that under a registered Will, a portion of the property comprised in Sy. No. 152 had been bequeathed in favour of the mother of the defendants. The case made out before the trial Court in the interim application is that due to inadvertence, instead of referring to the transaction -as Will, the same had been referred to as gift. If the transaction has been evidenced by a registered Will executed in favour of the mother, it is for the defendants to establish the same during the course of evidence.