B. Veerappa, J.
1. The plaintiffs/petitioners filed this writ petition against the order dated 14-9-2016 passed on I.A. No. 33 in O.S. No. 1812 of 2005 vide Annexure-A dismissing the application filed by her under Order6, Rule17of Code of Civil Procedure, 1908 ('CPC' for short) for amendment of the pleadings.
2. The plaintiffs filed the suit for partition and separate possession in respect of the suit schedule property contending that the suit schedule property is a joint family property of the plaintiffs and the defendants. The defendants denied the entire plaint averments and contended that the suit schedule property is a self acquired property of the defendants and sought for dismissal of the suit.
3. When the suit was posted for evidence of the defendants, at that stage, the plaintiffs filed I.A. No. 33 under Order6, Rule17of CPC for amendment of the plaint to incorporate few paragraphs after paragraph 10(b) in the plaint stating that subsequent to filing of the suit after leading the plaintiffs' evidence during the course of the defendants' evidence, the plaintiffs learnt about the registered Will dated 24-11-2004 executed by the deceased defendant 1 in
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avour of plaintiffs 2 to 4 in respect of portion of Sy. No. 20/1 of Kamarasanahalli Village. Subsequently, the plaintiffs applied for the said document and confronted to the witness-D.W. 2 during the course of the cross-examination of D.W. 2 and therefore the plaintiffs filed the present application seeking for declaration in respect of item No. 2 of the schedule property. Subsequent to filing of the present suit, he came to know that another Will dated 16-12-2005 said to have been executed by the 1st defendant in favour of defendant 4. Therefore he sought to incorporate the above facts and also to amend the prayer column and to declare that plaintiffs 2 to 4 are the absolute owners of item No. 2 of the suit schedule property as per the registered Will dated 24-11-2004 and also to declare that the alleged Will dated 16-12-2005 which has taken place in respect of item No. 2 of the schedule property is not binding on the plaintiffs and same is null and void.4. The said application (I.A. No. 33) was resisted by the defendant 4 contending that the application filed by the plaintiffs for amendment at that stage is not permissible and the application is liable to be rejected as the matter was posted for arguments on the main suit after completion of evidence of both the sides. The averment that the registered Will dated 24-11-2004 was executed by defendant 1 in favour of plaintiffs 2 to 4 in respect of portion of Sy. No. 20/1 is denied. He further contended that the averment of the plaintiff that the Will dated 16-12-2005 is obtained by the defendant during the pendency of the suit is hit by Section 52 of the Transfer of Property Act, 1882 and not valid in the eye of law, is false and baseless. The declaration sought for by the plaintiffs based on the Will dated 16-12-2005 cannot be entertained as the same will change the nature of the suit and cause of action etc.5. The Trial Court considering the entire material on record by the impugned order dated 14-9-2016 dismissed the application mainly on the ground that the application filed for amendment leads to de nova trial and in that case, additional issues have to be framed and opportunity has to be given to both the parties on the two Wills dated 24-11-2004 and 16-12-2005 and it will take considerable time and therefore rejected the application. Hence the present writ petition is filed.6. I have heard the learned Counsel for the parties to the lis.7. Sri Vijaykumar, learned Counsel for the petitioners/plaintiffs vehemently contended that the impugned order passed by the Trial Court rejecting the application for amendment is arbitrary and contrary to the intention of the Legislature to enact the provisions of Order6, Rule17of CPC and the law declared by the Hon'ble Supreme Court time and again and also contended that the Trial Court proceeded to reject the application on a wrong conclusion that the plaintiffs have the knowledge of the Will dated 24-11-2004 prior to filing of the suit. The pleadings on record clearly show that the 1st defendant who had executed the Will on 24-11-2004 has suppressed the same in the written statement. Even the written statement filed by the 4th defendant is silent about the Will dated 24-11-2004. Learned Counsel further contended that mere allowing the application for amendment on the ground that the Will came to the knowledge of the plaintiffs only during the course of the evidence of the defendants, will not take away the right of the defendants and no prejudice will be caused to the case of the defendants and therefore he sought to set aside the order passed by the Trial Court. In support of his contention, learned Counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court in the case of RamNiranjan Kajaria v. Sheo Prakash Kajaria and Others, VII (2015) SLT 562 : 2015 (10) SCJ 619 : 2015 AIR SCW 6475.8. Per contra, Sri Balaraj, learned Counsel for the respondents-Caveators sought to justify the impugned order passed by the Trial Court and contended that the application for amendment is at a belated stage when the matter is posted for arguments and the same is impermissible in view of the proviso to Order6, Rule17of CPC and therefore he sought to dismiss the writ petition.9. In view of the rival contentions urged by the learned Counsel for the parties to the lis, the only point that arises tor consideration is:Whether the Trial Court is justified in dismissing the application for amendment based on the subsequent events in the facts and circumstances of the case?10. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.11. It is an undisputed fact that the present petitioners who were the plaintiffs before the Trial Court have filed the suit for partition and separate possession of the suit schedule property and to declare that the gift deeds executed by the 1st defendant in favour of defendants 2 to 4 is not binding on the plaintiffs in respect of the suit schedule property. The 4th defendant filed the written statement and denied the entire plaint averments and contended that the suit filed by the plaintiffs for partition and separate possession is not maintainable. Fourth defendant contended that the suit schedule property is a self-acquired property of the 1st defendant who executed the registered Will dated 16-12-2005 in his favour and in view of the same, he became the owner and in possession of the suit scheduled property. Therefore he sought to dismiss the suit.12. It is also an undisputed fact that the present application is filed for amendment of the plaint on the basis of the subsequent development that after completion of the evidence, the plaintiffs came to know that a registered Will dated 24-11-2004 executed by the defendant 1 in favour of the plaintiffs 2 to 4 in respect of portion of Sy. No. 20/1 of Kamasanahalli Village. It is not in dispute that while the 1st defendant filed the written statement, he has not disclosed the said fact of execution of the Will dated 24-11-2004. Defendants have not disclosed the existence of the Will dated 24-11-2004 subsequently also. The 4th defendant set up his title based on the registered Will dated 16-12-2005 said to have been executed by the 1st defendant in his favour. It is a subsequent event. The Trial Court has to decide the genuineness of both the Wills claimed by the plaintiff and defendant 4 respectively by incorporating the pleadings with regard to the existence of the Will dated 24-11-2004 and the relief sought to that extent with regard to Will noway prejudice the case of the defendants. Ultimately both the parties have to establish their independent right under the two registered Wills dated 24-11-2004 and 16-12-2005 on the basis of the oral and documentary evidence on record. The Trial Court cannot reject the application for amendment since the same is required for resolving the dispute between the parties. The Hon'ble Supreme Court while considering the provisions of Order6, Rule17of CPC in the case ofRam Niranjan Kajaria v. Sheo Prakash Kajaria and Others, 2015 AIR SCW 6475has held as under:"23. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court inNagiadas Ramdas v. Dalpatram Ichharam alias Brijram and Others, (1974) 1 SCC 242. To quote paragraph 27:"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be primafacie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."(emphasis supplied)13. It is an admitted fact that the plaintiffs sought for amendment on the basis of the subsequent event which came to know after the evidence with regard to the Will dated 24-11-2004. Even though it was executed prior to the filing of the suit, it was not known for both (he plaintiff and defendant 4 till the completion of evidence of both the parties. Now the plaintiffs want to seek the amendment based on the subsequent event. Therefore mere allowing the application for amendment will not amount to decreeing the suit. Ultimately it is for both the parties to establish their rights independently on the basis of the oral and documentary evidence on record. Therefore the point raised in the present writ petition is to be answered in the negative holding that the Trial Court is not justified in dismissing the application for amendment, which is essential to resolve the dispute between the parties to the lis.14.-15. In view of the aforesaid reasons, the writ petition is allowed. Tire impugned order dated 14-9-2016 on I.A. No. 33 vide Annexure-A is set aside. The application filed by the plaintiffs under Order6, Rule17of CPC for amendment of the plaint is allowed subject to payment of costs of Rs. 3,000/- (Rupees Three thousand only) and the same is liable to be paid by the plaintiffs to the defendants. It is always open for defendant 4 to file additional written statement, if he so chooses.16. The suit is of the year 2005 and we are in 2016 and nearly 11 years have elapsed. Therefore Trial Court is directed to decide the suit as expeditiously as possible subject to co-operation from both the parties to the lis.
"2017 (4) KantLJ 204,"