MATHEW JOSEPH Vs. N RADHAKRISHNAN

JUDGEMENT

(1.) THE suit is one for declaration of a right of easement over a pathway. The second defendant was later removed from the party array since he had assigned away his right to the first defendant. The plaintiff had sought relief only in regard to the pathway. But the pathway started from the property of the wife of the plaintiff lying adjacent. This is clear from the report dated 10.11.2011 of the Advocate Commissioner.

(2.) THE proof affidavit of the plaintiff was filed on 06.02.2012 and the cross-examination commenced on the same day. The same continued on 07.02.2012 also. Thereafter the plaintiff filed an application for amendment of the plaint. The wife of the plaintiff was sought to be impleaded as the additional second plaintiff and her property also sought to be incorporated in the plaint schedule.

(3.) ORDER VI Rule 17 of the Code of Civil Procedure is not an absolute embargo to allow amendment of the pleadings after the trial commences. It is sufficient if the plaintiff satisfies the court that he could not take steps earlier notwithstanding the exercise of due diligence. The plaintiff has specifically pleaded in the application for amendment that this omission was noticed only at the time of evidence. There was also a talk of settlement preceding the listing of the case which allegedly distracted his attention.