Krishna S Dixit, J
1. This Petition seeks to call in question the order dated 09.08.2016 made by the learned Additional Sr. Civil Judge, Udupi, whereby the Application in
IA No.20 filed inter alia under Order VI rule 17 r/w Order VII Rule 9 of CPC, 1908 in a pending Partition Suit in O.S.No.64/2002 has been
negatived.
2. Despite service of notice, the respondents have chosen to remain unrepresented and that would not come in the way of this Court treating the case
on its intrinsic merits.
3. Having heard the learned counsel for the Petitioners and having perused the Petition papers, this Court is inclined to grant indulgence in the matter
inasmuch as, suit is one for Partition and separate possession of the subject properties. A particular stand was taken up by the Petitioners in their
Written Statement as to ‘B’ Schedule Property. However, material particulars of the said stand somehow were not furnished and therefore, the
subject Application had been moved seeking leave of the Court to amend the Written Statement for the purpose of offering the material particulars.
Such amendments are generally to be allowed inasmuch as, the same would not result into prejudice to the other side of course, subject to payment of
reasonable costs.
4. The version of the Court below that already PW1 has been examined is not a ground for denying a just prayer for the leave to amend the pleadings
more particularly in partition suit, as has been held by the Apex Court in a catena of decisions. This aspect of the matter has not been property
discussed by the learned judge of the Court below and that itself constitutes an error apparent on the face of the record. What prejudice would have
been caused to the parties if leave was accorded is also not discussed in the right perspective. Merely chanting that the amendment if allowed would
cause prejudice to other side is of no avail. The courts have to make all endeavors to settle the dispute completely in a wholesome way so that no
party would go home with a heart-burn.
In the above circumstances, this Writ Petition succeeds and the impugned order is quashed. The subject Application having been favoured, the
petitioners are permitted to amend the Written Statement as sought for within two weeks subject to they together paying a sum of Rs.1,000/- to each
of the Respondents by way of costs on the next date of hearing of the suit.
It is open to the Respondents to take up additional or such other pleadings to meet the amendment of the Written Statement within two weeks next
following.
Since the suit is two decade old, the learned trial judge is requested to try & dispose off the same within an outer limit of one month and report
compliance to the Registrar General of this Court.
Registry is directed to send a copy of this Judgement to all the Respondents by Speed Post, immediately.
