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IN THE HIGH COURT OF CIRCUIT BENCH AT DHARWAD

DATED THIS THE 12 TH DAY OF OCTOBER, 2012

BEFORE

THE HON’BLE MR.JUSTICE RAM MOHAN REDDY

W. P. NO.61161/2012 (GM-CPC)

BETWEEN:

SRI.SHIVAGOUDA DANAGOUDA PATIL AGE: 49 YEARS, OCC: AGRICULTURE AND LEGAL PRACTITIONER, R/O. BAMBALWAD, TQ: , NOW AT CHAWAT GALLI, BELGUAM. … PETITIONER

(BY SRI.M.G.NAGANURI, ADV)

AND:

1. SRI.RAMAGOUDA DANAGOUDA PATIL AGE: 65 YEARS, OCC: AGRICULTURE, R/O. DANAPPAGOL FARM HOUSE BAMBALWAD, TQ: CHIKODI, DIST: .

2. SRI.MALAGOUDA DANAGOUDA PATIL AGE: 62 YEARS, OCC: AGRICULTURE, R/O. DANAPPAGOL FARM HOUSE BAMBALWAD, TQ: CHIKODI, DIST: BELGAUM.

3. SRI.ALAGOUDA DANAGOUDA PATIL AGE: 59 YEARS, OCC: AGRICULTURE, R/O. DANAPPAGOL FARM HOUSE BAMBALWAD, TQ: CHIKODI, 2

DIST: BELGAUM.

4. SRI.RAMAPPA S/O. BASAPPA SAVADATTI AGE: 49 YEARS, OCC: COOLIE R/O. , TQ: MUDHOL,DIST: BAGALKOT NOW RESIDING AT: DANAPPAGOL FARM HOUSE BAMBALWAD, TQ: CHIKODI, DIST:BELGAUM.

5. SMT.RACHAWA W/O. SHANKAR HURALI AGE: 42 YEARS, OCC: HOUSEHOLD R/O. LAXMI NAGAR, , TQ :CHIKODI, DIST: BELGAUM. … RESPONDENTS

(BY SRI.V.J.GANDHI, ADV FOF R1 AND 3, SRI.P.V.SHIRAGAONKAR, ADV FOR R2, SRI.L.B.POOJARI, ADV FOR R5, R4 NOTICE DISPENSED WITH)

THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:20/01/2012 PASSED BY THE SENIOR CIVIL JUDGE CHIKODI ON I.A.NO.5 IN O.S.NO.30/2008 PRODUCED AT ANNEXURE-F AND ETC.,

THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT, MADE THE FOLLOWING:

ORDER

The rejection of plaintiffs’ IA-V under Order VI Rule

17 CPC by order dated 20.01.2012 of the Senior Civil

Judge, Chikkodi, in O.S.No.30/2008 Annexure-F is called in question in this petition. 3

2. Petitioner instituted the suit for declaration, partition and separate possession, which was resisted by filing writing statement indicating that three other immovable properties being joint family properties were not included in the list of suit schedule properties.

Plaintiff having noticed the same filed IA-V under Order 6

Rule 17 CPC to amend the plaint to add the three items of immovable properties in the plaint schedule. That application was opposed stating that the trial having commenced, the amendment to the pleadings is impermissible. The trial court having regard to the pleadings of the parties observed that after the commencement of the trial in accordance with the proviso to Order VI Rule 17 CPC, no amendment is permissible and accordingly dismissed the application by the order impugned.

3. Heard Sri.Naganuri, learned counsel for the petitioner. Perused the pleadings and examined the order 4

impugned. The proviso to Rule 17 of Order VI states that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In the instant case, it is not the plea of the defendants that the plaintiff despite due diligence had failed to add all the immovable properties of the joint family in the list of the plaint schedule. In fact, it was the defendants who in the written statement pointed out that the three properties belonging to the joint family were not in the plaint schedule. There being no dispute that IA-V filed by the plaintiff was only after the filing of the affidavit in lieu of recording examination-in-chief of the plaintiff, on noticing that all the properties of the family need to be included in the suit schedule, it cannot be said that the plaintiff despite due diligence had failed to file the application for amendment before the commencement of the trial. Even otherwise in a suit for declaration, 5

partition and separate possession of the properties belonging to the joint family all the properties required to be included in the suit schedule and if some property is left out, amendment of the plaint is desirable since the plaintiff cannot maintain yet another suit for the same reliefs in respect of left over properties. In my considered opinion, the trial court was not justified in rejecting IA-V.

4. In the result, this petition is allowed. The order dated 20.01.2012 dismissing IA-V is quashed. IA-V is allowed. Petitioner to amend the plaint accordingly.

Defendants are entitled to file additional written statement.

SD/- JUDGE

jm/-