Karnataka HC Upholds Rejection Of Partition-Suit Defendant’s Bid To Deny Properties Were Ancestral, Citing No Due-Diligence Explanation After Trial Began

The petitioner challenged the Senior Civil Judge, T. Narasipura’s order rejecting his application under Order VI Rule 17 CPC to amend the written statement in a partition suit.

The written statement pleaded that the suit properties were ancestral joint-family properties.

The petitioner described the proposed changes as corrections of typographical errors, but the High Court found they would introduce a plea that the properties were not ancestral, thereby altering the defence.

The application was filed after the suit had reached the stage of cross-examination of PW.1, and neither the application nor its supporting affidavit explained why the amendment could not have been sought earlier despite due diligence.

Order VI Rule 17 CPC permits amendments necessary to determine the real questions in controversy, but its proviso bars allowing an amendment after commencement of trial unless the court is satisfied that, despite due diligence, the party could not have raised the matter earlier.

The burden of establishing due diligence rests on the party seeking amendment, and the power to amend is not a matter of right (Basavaraj v. Indira, (2024) 3 SCC 705).

A defendant may generally introduce a new ground of defence, alter or substitute an existing defence, or take an inconsistent plea (Usha Balashaheb Swami v. Kiran Appaso Swami, (2007) 5 SCC 602).

Amendments are ordinarily considered liberally when needed for complete adjudication, subject to the statutory requirements of the proviso (Life Insurance Corporation of India v. Sanjeev Builders Private Limited & Anr., Civil Appeal No. 5909 of 2022).

Although a defendant may generally amend a written statement to raise an inconsistent defence, the proposed amendment was substantive rather than merely typographical: it would replace the existing plea that the properties were ancestral joint-family properties with a contrary plea.

Because the suit had already reached cross-examination of PW.1, the proviso to Order VI Rule 17 applied.

The petitioner’s application and affidavit contained no explanation showing that due diligence had prevented the amendment from being sought before trial commenced. The statutory condition was therefore unsatisfied.

The High Court noted that the Trial Court’s reasons might not, by themselves, fully support its conclusion, but found no basis to interfere given the failure to meet the proviso’s requirement.

The High Court dismissed the writ petition and declined to interfere with the order rejecting the amendment application.