Whether plaint can be amended at the instance of defendant in a partition suit to include property. Karnataka and Madras High Courts take different views.

Karnataka High Court. Channaveerappa Gowda vs Renukappa Gowda and others. Writ Petition 34142/2012 decided on 1 April 2014.

Judgment Link: http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/942536/1/WP34142-12-01-04-2014.pdf

Held: Paragraph 14. Coming to the case on hand, Order VI Rule 17 CPC provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings as may be necessary for determining the real question in controversy between the parties. The plaint, therefore, can be amended only at the instance of the plaintiff and the 1st defendant cannot seek to include a property in the plaint schedule.

Madras High Court Solavaiammal v. Ezhumalai Goundar, 2011 SCC OnLine Mad 2161 : (2011) 5 LW 859 : (2012) 1 CTC 159 : (2012) 2 ICC 294 : 2012 AIR CC 778,

15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.

17. In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.

Compiled by S. Basavaraj, Advocate, Daksha Legal.