THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2537 OF 2011 12.08.2011 Between: Sayapu Raju Suryanarayana Raju And others. …Petitioners AND Sayapuraju Venkata Rama Raju …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2537 OF 2011 ORDER: The respondent’s suit for partition was dismissed. He then filed A.S.No.14 of 2008. The petitioners who are the defendants in the suit and respondents in the appeal filed I.A.No.266 of 2010 under Order VI Rule 17 of Code of Civil Procedure, 1908 (CPC) for amending the written statement, by inserting a penultimate paragraph in the written statement. The same was dismissed by the trial Court. Aggrieved by which, the present civil revision petition is filed. The background of the revision petition as culled out from various documents is as follows. One Venkata Raju had two sons, namely, Pullam Raju and Subba Raju through his first wife. After the death of his first wife, Venkata Raju married third defendant/third petitioner herein and petitioners 1 and 2 herein are their children. The respondent is son of Subba Raju and grandson of Venkata Raju. It appears Subba Raju was not happy with Venkata Raju taking the third petitioner as second wife. This led to family feuds. There was a partition between Venkata Raju and his two sons. Subba Raju later sold away his share of property. In the partition, plaint ‘A’ schedule fell to the share of Venkata Raju and from out of the income therefrom, he purchased plaint ‘C’ schedule property. He died intestate on 12.02.2003. The defendants/petitioners herein took possession of the property and started claiming exclusive property ignoring the demands of the plaintiff for partition. Therefore, he filed the suit. The defendants’ defence in the suit is that they are the nearest heirs, and therefore, the respondent/plaintiff is excluded from succession. It appears the trial Court accepted the plea and dismissed the suit. In I.A.No.266 of 2010 in A.S.No.14 of 2008, the petitioners/defendants alleged that after going through the record, they noticed the plea regarding Ex.B.7, Will, allegedly executed by Venkata Raju bequeathing his property to defendants and by oversight and mistake, such plea was not taken in the written statement. Therefore, they sought to amend the written statement to the effect that in view of Ex.B.7, registered will, executed by Venkata Raju to defendants, they have exclusive right to the suit schedule properties and that it cannot be partitioned. As noticed supra, the first appellate Court dismissed the application holding that the defendants are not entitled to adduce evidence without there being a formal pleading and having brought the Will on record they are now trying to amend the written statement belatedly. Any such amendment, according to civil Court, will give rise to new controversy and enlarge the scope of the suit. The counsel for petitioners vehemently contends that any amount of evidence cannot be looked into without there being proper pleading. Therefore, the petitioners’ sought amendment with regard to execution of Ex.B.7, Will, by Venkata Raju. Nextly, he would contend that any such amendment would not cause any prejudice to the respondent, and therefore, at the appellate stage, it is competent for the Court to amend the pleadings in the written statement. Rule 17 of Order VI of CPC confers discretion on the civil Court to allow either party to alter or amend the pleadings at any stage of the proceedings if the Court feels that such amendment may be necessary for the purpose of determining the real question in controversy between the parties. After Code of Civil Procedure (Amendment) Act, 2002 (Central Act No.22 of 2002), wide power has to be exercised by the Court only when it comes to the conclusion that “in spite of due diligence, the party could not have raised the matter before commencement of trial”. The suit was filed about a decade ago and appeal itself was filed before the Senior Civil Judge being A.S.No.14 of 2008. The petitioners sought amendment by filing application only in 2010. There is no denial that Ex.B.7, Will, was already brought on record as evidence. This only shows that during pendency of the proceedings in a civil Court as well as appellate Court, this petitioner was very much aware of Ex.B.7, Will. But they did not choose to file any application. This conclusively proves that the petitioners were not diligent and it is not a case where they could not have raised such a plea before the commencement of the trial. A party to the proceedings who allows the trial to proceed and waits for about two years even after filing of the appeal cannot be allowed to seek amendment under Order XVI Rule 17 of CPC. A reference may be made to Jaswant Kaur v Subhash Paliwal[1], wherein it is held as under. … that the power to allow amendment of pleadings is very wide and is to be applied liberally. However, in the context of the instant case, such an argument would not be available to the petitioners since, as found by the courts below, they were fully aware of the will in question, but had not even mentioned the same in their written statement and had only made an application under Order 11 Rules 12 and 14 CPC for a direction upon the respondents to produce the same, which prayer had been rejected. It is only at the first appellate stage, and, that too, about two years after the appeal had been filed, that the two applications were made under Order 41 Rule 27 and Order 6 Rule 17 CPC for amendment of the plaint and for bringing on record the certified copy of the will. By virtue of the said two applications, the petitioners attempted to introduce a new story by way of defence in order to prolong the disposal of the appeal. The learned appellate Judge has correctly considered the issue and dismissed the application. This Court does not find any grave error apparent on the face of record. The civil revision petition is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 12.08.2011 Pln [1] (2010) 2 SCC 124