B.SHARADA DEVI Vs. PUSHPAMMA

JUDGEMENT

(1.) Since these two writ petitions arise out of two orders dtd. 7/3/2019 in I.A.No.29 and 15/2/2019 in I.A.No.32 passed in O.S.No.4631/2005 and the lis is between the same parties, the two writ petitions are heard together and disposed of by this common order.

(2.) The petitioners are defendants No.12 to 19 in O.S.No.4631/2005. Respondent No.1-Smt.Pushpamma, who is no more, filed the suit for partition and separate possession; declaration that she is the absolute owner of suit schedule 'B' property and that the sale deed dtd. 3/12/1992 executed by defendant No.1 in favour of defendants No.10 to 19 is not binding on the plaintiff. After the death of the sole plaintiff, her legal representatives have been brought on record.

(3.) Long after written statements were filed by the defendants, trial having commenced, examination and cross- examination of the plaintiff's witness concluded and after examination of the defendants witnesses and when the matter was posted for further cross-examination of DW2, the plaintiff filed an application for amendment, under Order VI Rule 17 of the Code of Civil Procedure, in I.A.No.29, on 5/12/2017. The application was rejected by order dtd. 28/7/2018. The plaintiff approached this Court in W.P.No.44636/2018 and this Court by order dtd. 11/12/2018 held that the Trial Court did not decide the application on the touchstone of the well settled legal proposition that if the amendment is sought within the period of limitation having regard to the claim, the same can be allowed. However, if the proposed amendment appears to be barred by limitation, the application for amendment has to be rejected. Similarly, if an application for amendment is filed after commencement of trial, the Trial Court can allow the application for amendment, provided, the Trial Court records a finding that notwithstanding exercise of due diligence, such an application could not have been filed at an earlier point of time. On remand, the Trial Court proceeded to pass the impugned order allowing the application on costs of Rs.1,000.00.