Hon'ble Mr. Justice Mohan M. Shantanagoudar
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1669 OF 2019
(@ S.L.P. (Civil) No. 19188 of 2010)
M. REVANNA ...APPELLANT
VERSUS
ANJANAMMA (DEAD) BY LRS. & ORS. ...RESPONDENTS
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The order dated 09.04.2010 passed in Writ Petition No.
2266 of 2009 (GMCPC) by the High Court of Karnataka is called
in question in this appeal.
3. The appellant herein was Plaintiff No. 1 in the suit being
O.S No. 2611/1993 filed seeking partition and separate
possession of joint family properties. Plaintiff Nos. 1 to 5,
including the appellant herein, filed the said suit seeking
partition and separate possession of joint family properties to the
extent of 1/6th share to Plaintiff Nos. 1 to 3, 1/6th share to
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Plaintiff No. 4 and 1/6th share to Plaintiff No. 5. Initially, only
three defendants were made parties to the suit. Immediately
upon the appearance of Defendant Nos. 1 to 3, a compromise
petition was filed on behalf of Plaintiff Nos. 1 to 5 and Defendant
Nos. 1 to 3, contending that the plaintiffs and defendants had
divided the joint family and ancestral properties as per the
memorandum of partition dated 18.05.1972 under the Panchayat
Parikath. The compromise petition came to be filed in the Trial
Court on 22.04.1993. The Defendant Nos. 4 to 6, who also belong
to the same family as the persons mentioned above, having come
to know about the filing of the compromise petition in the suit for
partition, and also having come to know that they were not
parties to the suit, filed an application for impleadment and
opposed the compromise petition, contending specifically that the
joint family properties had not been divided at any point of time
and that the family, as well as its properties, continued to be
joint. However, the Trial Court vide order dated 04.06.1994
dismissed the suit as having been compromised. The said order
of the Trial Court was questioned by Defendant No. 6 before the
High Court by filing RFA No. 297/1994 and after hearing, the
High Court set aside the order dated 04.06.1994. Consequently,
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the suit being O.S. No. 2611/1993 was restored on the file of the
Trial Court. The High Court directed the Trial Court to dispose of
the suit on merits. After remand, the original Defendant No. 6
was transposed as Plaintiff No. 6 in the suit. The present
Respondent No. 1 is the transposed Plaintiff No. 6 in the suit.
(Respondent No. 1 expired during the pendency of the appeal
herein and her legal heirs have been brought on record).
4. After remand, Plaintiff Nos. 1 to 5 did not adduce any
evidence initially. However, Plaintiff No. 6/Respondent No. 1
herein adduced evidence on 02.07.2003 and was thoroughly
crossexamined by Plaintiff Nos.1 to 5. Though Plaintiff No. 1
tried to give evidence as PW2, he did not make himself available
for crossexamination from 2003 to 2007. Consequently, he was
discharged by the Trial Court. However, after prolonged
adjournments, PW2 made himself available and was
crossexamined on 12.02.2008. Thereafter, on 01.09.2008,
Plaintiff Nos. 1 to 5 made an application being I.A. No. 22 under
Order VI Rule 17 of the Code of Civil Procedure (for short, “the
CPC”) for amendment of the plaint, pleading that a prior partition
had taken place as per the memorandum of partition dated
18.05.1972, as mentioned supra. The Respondent No. 1 herein
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and the other two contesting defendants, i.e. Defendant Nos. 4
and 5 objected to the amendment application, contending inter
alia that the application for amendment of the plaint is not only
highly belated but also not bona fide, and that at no point of time
was there any partition among the family members. The Trial
Court, however, proceeded to allow the application for
amendment by the order dated 14.11.2008, which came to be set
aside by the High Court by the impugned order dated
09.04.2010. Hence, this appeal by the unsuccessful Plaintiff No.
1. It is relevant to note that Plaintiff Nos. 2 to 5 acting through
Plaintiff No. 1 have accepted the order rejecting the amendment
application.
5. Leave to amend may be refused if it introduces a totally
different, new and inconsistent case, or challenges the
fundamental character of the suit. The proviso to Order VI Rule
17 of the CPC virtually prevents an application for amendment of
pleadings from being allowed after the trial has commenced,
unless the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the
commencement of the trial. The proviso, to an extent, curtails
absolute discretion to allow amendment at any stage. Therefore,
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the burden is on the person who seeks an amendment after
commencement of the trial to show that in spite of due diligence,
such an amendment could not have been sought earlier. There
cannot be any dispute that an amendment cannot be claimed as
a matter of right, and under all circumstances. Though normally
amendments are allowed in the pleadings to avoid multiplicity of
litigation, the Court needs to take into consideration whether the
application for amendment is bona fide or mala fide and whether
the amendment causes such prejudice to the other side which
cannot be compensated adequately in terms of money.
6. As mentioned supra, the suit was filed in the year 1993 and
at that point of time, Defendant Nos. 4 to 6 were not made
parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to
3 were the only parties. They had filed a joint memorandum for
the dismissal of the suit on 22.04.1993, which was within one or
two months of the filing of the suit. The compromise petition
came to be rightly dismissed by the High Court in RFA No.
297/1994. In the compromise petition, curiously, it was noted
that the joint family properties were divided by metes and bounds
in the year 1972. If the partition had really taken place in the
year 1972 and was acted upon as per the Panchayat Parikath,
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then Plaintiff Nos. 1 to 5 would not have filed a suit for partition
and separate possession in the year 1993. Be that as it may, it is
clear from records that the suit was being prolonged on one
pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the
application for amendment of the plaint came to be filed on
01.09.2008. By that time, the evidence of both the parties had
been recorded and the matter was listed for final hearing before
the Trial Court. If there indeed was a partition of the joint family
properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from
making the necessary application for the amendment of the
plaint earlier. So also, nothing prevented them from making the
necessary averment in the plaint itself, inasmuch as the suit was
filed in the year 1993. Even according to Plaintiff Nos. 1 to 5,
they came to know about the compromise in the year 1993 itself.
Thus, there is no explanation by them as to why they did not file
the application for amendment till the year 2008, given that the
suit had been filed in 1993. Though, even when Plaintiff Nos. 1
to 5 came to know about the partition deed dated 18.05.1972
(Panchayat Parikath) on 22.04.1993, they kept quiet without
filing an application for amendment of the plaint within a
reasonable time. On the contrary, they proceeded to cross
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examine PW1 thoroughly and took more than five years’ time to
get the examination of PW2 completed, and only thereafter filed
an application seeking amendment of the plaint on 01.09.2008,
that too when the suit was posted for final arguments. As
mentioned supra, the suit itself is for partition and separate
possession. Now, by virtue of the application for amendment of
pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition
had already taken place in the year 1972 and they are not
interested to pursue the suit. Per contra, Plaintiff No.
6/Respondent No.1 herein wants to continue the proceedings in
the suit for partition on the ground that the partition had not
taken place at all.
7. Having regard to the totality of the facts and circumstances
of the case, we are of the considered opinion that the application
for amendment of the plaint is not only belated but also not
bona fide, and if allowed, would change the nature and character
of the suit. If the application for amendment is allowed, the
same would lead to a travesty of justice, inasmuch as the Court
would be allowing Plaintiff Nos. 1 to 5 to withdraw their
admission made in the plaint that the partition had not taken
place earlier. Hence, to grant permission for amendment of the
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plaint at this stage would cause serious prejudice to Plaintiff No.
6/Respondent No. 1 herein.
8. Accordingly, the order of the High Court quashing the order
of the Trial Court dated 14.11.2008, which had allowed the
application for amendment of the plaint, is hereby confirmed.
The appeal fails and is hereby dismissed.
…..
……………………………..J.
[ N.V. Ramana]
…..……………………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
February 14, 2019.
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