M.Revanna vs Anjanamma (Dead) By Lrs.

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 1 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, 2 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 3 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.

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 7 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.

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February 14, 2019.