ASHWATHANARAYANA Vs. KANTHAMMA, W/O T GOPALAIAH

JUDGEMENT

(1.) Defendants No.2 and 3 have filed the present writ petition against the order dated 14.06.2018 made in O.S.No.24/2011 on the file of Senior Civil Judge at Malur dismissing I.A.No.21 filed under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure to amend the written statement.

(2.) Respondent No.1-plaintiff has filed suit for declaration and permanent injunction mainly on the basis of the family settlement deed/partition deed said to have been executed by defendant No.1 by drawing the schedule 'A' and 'B'. 'A' schedule properties fallen to the share of defendants No.2 and 3 since their mother was not alive and 'B' schedule properties are fallen to the share of plaintiff. 'A' schedule properties are exclusively enjoyed by defendants No.2 and 3 and joint katha was effected in their names. Defendant No.3 filed written statement denying the averments made in the plaint and contended that the defendants No.2 and 3 are respectable persons in the locality, they could not colluded with the defendant No.1. Either the plaintiff or any other persons have no manner of right, title, possession or whatsoever over the suit schedule properties. Even today the defendant No.1 is in actual possession and enjoyment of the same lands. Defendants No.2 and 3 are not the concerned parties in this case and further contended that defendant No.1 was the absolute owner of the suit schedule property and other properties. Defendants No.2 and 3 are the only legal heirs of defendant No.1 and sought for dismissal of the suit.

(3.) When the matter was posted for issues, at that stage, defendants No.2 and 3 filed an application under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure on 02.07.2012 to delete para 6 and add new para 6 and insert para 6A and 7 and delete original para 8 of the written statement and add new para contending that defendants No.2 and 3 have hurriedly filed their written statement. The suit schedule properties were belong to their father and they have not specifically stated in their written statement that how their father got same in his name. They have also not stated in detail about their joint family affairs. The said application was resisted by the plaintiff by filing objections and contended that the application for amendment is not maintainable and is liable to be dismissed. The defendant No.3 who sworn the affidavit has willfully suppressed the fact and contended that it is nothing but the counter blast to the application filed by the plaintiff under Order 15 Rules 1 and 2 of Code of Civil Procedure, in which the plaintiff has raised a plea that there is no lis between the parties. The present application is after thought and there is no bonafide reasons averred in the application therefore, sought for dismissal of the application. The trial Court considering the application and objections by the impugned order dated 12.06.2018 dismissed the application filed by defendants No.2 and 3 under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure for amendment of written statement. Hence the present writ petition is filed.