CRP/5753/2011 of Bayana Srimannarayana Dutt Vs Bayana Sobhanadri Arya on 30 December 2011

ORDER :-

This revision is filed questioning the order dated 25.11.2011 in I.A. No.552 of 2011 in O.S. No. 196 of 2007 by the II Additional Senior Civil Judge,Vijayawada, Krishna district in dismissing the application filed under Order VIRule 17 and Section 151 of CPC to amend the plaint.

The revision petitioner is plaintiff, who filed a suit in O.S No. 196 of2007 for partition of the plaint schedule property into four equal shares and toallot one share to the plaintiff with a direction to deliver the vacant possessionof his share. After commencement of the trial, he filed an application in I.A.No. 552 of 2011 seeking amendment of the plaint to include the Bangaloretiled house in an extent of 97 sq yards, stated to have been purchased by hisfather in the year 1974. The Court below by the order under revision dated25.11.2011 dismissed the said application on the ground that the trial wasalready commenced and there is no reason to presume that in spite of duediligence the petitioner could not have raised the issue beforecommencement of trial. Hence, the present revision.Heard the learned counsel for petitioner and perused the materialavailable on record.

In terms of proviso to Order 6 Rule 17 of CPC, no application foramendment shall be allowed after the trial has commenced, unless the Courtcomes to the conclusion that in spite of due diligence the party could not haveraised the matter before the commencement of trial. In the present case, thepetitioner wants to amend the plaint to add the property which was admittedlypurchased by his father on 2.11.1974 and absolutely there is no reasonexplained by the petitioner as to why he could not include the said property atthe time of filing of the suit or before commencement of the trial. In such circumstances, the Court below has rightly dismissed the application and thesaid order cannot be said to be illegal or irregular warranting interference ofthis Court.

The revision fails and the same is hereby dismissed. No costs.

_____________V ESWARAIAH,J

DATE:30.12.2011

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DT.30.12.2011