MALLAVARAM GOWRI Vs. V. LATHA

JUDGEMENT

(1.) The civil revision petition is filed under Article 227 of the Constitution of India assailing the order dated 13.10.2016 in I.A.No.123 of 2013 in O.S.No.57 of 2005 on the file of the III Additional District Judge, Tirupati, Chittoor District, whereby the petition filed under Order VI Rule 17 of Code of Civil Procedure, 1908 (for short "CPC ") to amend the plaint so as to implead item No.6 i.e. Ac.2.42 cents of land situated in R.Mallavaram village in S.No.318/4 and to make consequential amendment in the plaint, was allowed.

(2.) Heard Sri V.Sudhakar Reddy, learned counsel for the petitioner/3rd respondent and Sri Kurra Srinivasulu, learned counsel for the 3rd respondent/3rd plaintiff.

(3.) Learned counsel for the petitioner would submit that the Court below erred in holding that the petitioner did not deny that the property purchased by her is the joint family property, since in the counter it is stated that the said property is the absolute property of the 1st defendant. He further submits that observation of the Court below is contrary to the proviso to Rule 17 of Order VI of CPC, which clearly states that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. He submits that the Court below ought to have seen that the plaint cannot be amended after preliminary decree, as the petitioner will be deprived of her right of defence in the suit. He submits that even though the plaintiffs are aware that the petitioner purchased the above properties from 1st defendant, neither they took any steps against the decree and judgment in O.S.No.391 of 2007 nor included the present property before the preliminary decree is passed.