Karnataka High Court
Sri M Krishne Gowda vs Sri Raghu B Narayan on 20 August, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC:32377
WP No. 36125 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 36125 OF 2024 (GM-CPC)
BETWEEN:
SRI M KRISHNE GOWDA
AGED ABOUT 78 YEARS
S/O. LATE PATEL MARKANDE GOWDA
R/AT MARKANDAPURA VILLAGE
VOKKALERI HOBLI, KOLAR TALUK
KOLAR DISTRICT-563 103.
...PETITIONER
(BY SRI. RAMA BHAT K., ADVOCATE)
AND:
SRI RAGHU B. NARAYAN
S/O LATE NARAYAN
AGED ABOUT 46 YEARS
R/AT NO.75, 4TH 'N' BLOCK
Digitally 'B' CROSS, OPP. POST OFFICE
signed by
NAGAVENI RAJAJINAGARA
Location: BENGALURU-560 010.
HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. BHANU PRASAD K., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ORDER OR DIRECTION
AND THEREBY SET-ASIDE THE IMPUGNED ORDER DATED
17.12.2024 ON IA NO.24 IN OS NO.276/2017 ON THE FILE OF
THE HON'BLE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC
AT KOLAR AS ANNEXURE-A
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC:32377
WP No. 36125 of 2024
HC-KAR
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner - defendant is before this Court calling in question an order dated 17.12.2024 passed by the III Additional Senior Civil Judge and JMFC, Kolar, whereby, an application - I.A.No.24 filed under Order VI Rule 17 r/w.
Section 151 of the CPC, by the plaintiffs, in O.S.No.276/2017, seeking permission to amend the plaint in O.S.No.276/2017, instituted for partition and separate possession, comes to be allowed.
2. Heard Sri Rama Bhat K., learned counsel for petitioner and Sri Bhanu Prasad K., learned counsel for respondent.
3. The respondent is the second plaintiff before the concerned Court, petitioner, the defendant. The suit is instituted for partition and separate possession. The issue in the lis does not relate to the claim of the plaintiff or the defense of the defendant. What has driven the petitioner - defendant to this Court is, allowing an application - I.A.No.24 filed under Order VI Rule 17 r/w. Section 151 of the CPC by the plaintiffs seeking amendment of the plaint before the concerned Court.
-3-NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR The application comes to be rejected by the concerned Court, which was challenged before this Court in W.P.No.1450/2024.
A coordinate bench of this Court on 17.01.2024 disposed the said petition by the following order:
"This petition by the plaintiff in O.S.No.276/2017 on the file of the III Addl. Senior Civil Judge & JMFC, Kolar, is directed against the impugned order dated 19.12.2023 passed on I.A.No.24, whereby the said application filed by the petitioner under Order 6 Rule 17 CPC for amendment of the plaint was rejected by the Trial Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the petitioner - plaintiff filed the instant suit against the respondent - defendant for partition and separate possession of their alleged share in the suit schedule immovable properties and for other reliefs. The said suit was contested by the respondent - defendant, who not only disputed the claim of the plaintiff, but also put-forth a counter claim for declaration and permanent injunction in respect of the written statement schedule properties.
4. Prior to commencement of trial, the petitioner - plaintiff filed two applications, viz., I.A.No.24 under Order 6 Rule 17 CPC for amendment of the plaint and I.A.No.25 under Section 151 CPC to grant leave to the plaintiff to file rejoinder to the counter claim of the defendant. The respondent - defendant filed objections and opposed both the applications. It is the grievance of the petitioner that both the applications - I.A.Nos.24 and 25 were heard together by the Trial Court which however proceeded to pass the impugned order only rejecting I.A.No.24 while -4- NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR I.A.No.25 is still pending consideration. It is therefore contended that the impugned order passed by the Trial Court deserves to be set aside and I.A.No.24 deserves to be remitted back to the Trial Court for reconsideration afresh along with I.A.No.25, in accordance with law.
5. Per contra, learned counsel for the respondent, on instructions submits that he has no objection for the impugned order to be set aside and for I.A.No.24 to be remitted back to the Trial Court for reconsideration afresh along with I.A.No.25, in accordance with law.
6. In view of the aforesaid facts and circumstances and submissions made by both sides, though several contentions are urged by both sides in support of their respective claims, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to set aside the impugned order passed on I.A.No.24 and remit the said application back to the Trial Court for reconsideration of I.A.No.24 along with I.A.No.25, in accordance with law after providing sufficient and reasonable opportunity and hearing both petitioner and respondent.
7. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
(ii) The impugned order dated 19.12.2023 passed on I.A.No.24 in O.S.No.276/2017 by the III Additional Senior Civil Judge & JMFC at Kolar is hereby set aside.
(iii) The matter is remitted back to the Trial Court for re-consideration of I.A.No.24 as well as I.A.No.25 in accordance with law after providing sufficient and reasonable opportunity and hearing both petitioners and respondents.-5-
NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR
(iv) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same."
(Emphasis supplied) The matter was remitted back for consideration afresh.
The consideration of the application afresh has resulted in the impugned order, allowing the application seeking amendment.
It is therefore, the petitioner - defendant is before this Court.
4. Learned counsel appearing for the petitioner submits that the suit was instituted in the year 2017, the counter claim along with the written statement was filed in the year 2018 and the issues were framed in the year 2019. Five years thereafter, the application comes to be filed by the plaintiffs seeking amendment to the plaint. The reason rendered in the application is that, the earlier counsel had erred in bringing in these amendments. The learned counsel submits that the amendments affect the very nature of the plaint, would also change the claim, boundaries, and all other reliefs sought in the plaint.
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5. Learned counsel for the respondent would on the other hand refute the submissions, contending that the application seeking amendment becomes necessary, because the earlier counsel who was representing the plaintiffs had not brought in all the facts or not described the schedule of the property appropriately and therefore, it is only those amendments that are sought. He would admit that on the basis of the issues already framed, evidence was in progress at the time when the application was preferred seeking amendment to the plaint. He would nonetheless seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.
7. The afore-narrated facts are not in dispute. The issue now relates to allowing of an application - I.A.No.24 filed under Order VI Rule 17 r/w. Section 151 of the CPC. Therefore, I deem it appropriate to notice the order so passed by the concerned Court.
"REASONS
8. Point No.1: Applicant/plaintiff in his annexed affidavit has contended that filed the above suit against -7- NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR the defendants for the relief of Partition and Separate possession and such other reliefs, at the time of filing the suit, these facts were brought to the knowledge of previous counsel but however the counsel has not made any efforts to include the same by way of amendment and rectify errors in the schedule to the plaint nor he has taken any efforts to describe the Will in the plaint although these documents were given to the said counsel and it is only after the plaintiff No.2 taken NOC from the previous counsel and engaged the present counsel in the above suit. The said amendment is very much necessary for the suit. The amendment is purely bonafide reason, but not intentional one. Hence, this accompanying application. The said amendment will not change the nature of the suit or cause of action. If this application is not allowed the plaintiff No.2 will be put to great hardship and injury, if the application is allowed no prejudice will be caused to the other side. As such the amendment sought in the proposed application is very much necessary for just decision of the case. If the amendment application is allowed, no hardship or irreparable loss would be caused to the defendant and it also not changes the cause of action or nature of the suit. Hence, this application.
9. Per contra, the defendant has filed objection stating that Order VI Rule 17 specifically barres amendment after the trial has commenced. If the Hon'ble Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial, then only amendment can be allowed. The 2nd Plaintiff, however it is disclosed why the 2nd Plaintiff not pleaded the facts involved in the proposed amendment. All the proposed amendments are within the knowledge of the Plaintiffs. Further, At this stage the 2nd Plaintiff in estopped from carrying out the amendment as proposed.
10. The Defendant further submits that the application for amendment of plaint at this stage is devoid of merits and cannot be considered to overcome the lacunas and admissions of PW-1. The defendant further submits that the averments made by him in the written statement/counter claim and the documents produced by -8- NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR him may kindly be read as part and parcel of this objection statement so as to avoid repetition.
11. Perused the pleadings, IA, objection and records placed before this court, the suit is one for partition and separate possession. Order 6 rule 17 of CPC deals with the amendment of the pleadings. The court may at any stage of the proceedings allow either the party to alter or amend the pleadings in such a manner as such terms as may be just and all such amendments shall be made as may be necessary for determine the real question in controversy between the parties.
The proviso under order 6 rule 17 of CPC says that, "no application for amendment shall be allowed after commencement of trial, the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial."
12. In this case, when the case is posted for cross of PW-3, the plaintiff No.2 has come up with this application to amend the plaint as mentioned in the application. The proposed amendment will not substitute the paragraph introducing entirely different or new case. The proposed amendment seems to be in continuation of the plaint and amendment sought by the plaintiff No.2 is nothing but including all the family properties and also he has pleaded that Will has been executed by the M. Narayan infavour of plaintiff No.2, the burden is on the plaintiff No.2 to prove this will has been executed or not, which is not under suspicious circumstances. The proposed amendment will not completely change the nature of his original pleadings, It will not bring entirely new plea by taking away original pleadings. No doubt there is a delay in filing the application for amendment, but the amendment sought is as discussed above will not add new pleadings or to over come the admissions and also the proposed amendment is not by way of withdrawing the earlier statement. Therefore, this court is of the opinion that, if opportunity is given to the plaintiff No.2 to amend the plaint, the same will not change the basic structure of the plaint which already filed.
-9-NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR The delay in amending the plaint can be compensated by imposing cost. However, trial is not completed. If opportunity is not given to plaintiff, he will be put to hardship and he will be deprived of his right of pleadings. Under the facts and circumstances of this court, this court is of the opinion that, the application filed by the plaintiff No.2 deserves to be allowed by imposing cost. Hence, point No.1 is answered in the affirmative.
13. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER I.A.No.24 filed by the plaintiffs Under Order VI Rule 17 Read with Section 151 of CPC is hereby allowed on cost of Rs.500/-."
(Emphasis added) The afore-quoted order is passed answering the application - I.A.No.24. The application - I.A.No.24 reads as follows:
"APPLICATION UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE AS HEREUNDER That for the reasons sworn to in the accompanying affidavit the Plaintiff prays that this Hon'ble Court may be pleased to permit the Plaintiffs to amend the plaint as sought for herein below and accordingly the Hon'ble Court may be pleased to dispose off the application on its merits, in the interest justice, equity and law.
PROPOSED AMENDMENT OF THE PLAINT
1. " to include para No.5(a) to 5(g) after para No.5 Para No.5(a). The Plaintiff submits that during the life time of M.Narayan and Smt.C.H.Lakshmi Devi they had
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR no issues of their own and they have taken the Plaintiff No.2 Sri.Raghu.B.Narayan into adoption when he was nine months old baby and whereas the Plaintiff No.2 biological parents are Sri.G.Gopal and Smt.C.H.Saroja and together they had twin babies both male children viz., Ravi and Raghu and out of the two twins one was given into adoption to Sri.M.Narayan and Smt.C.H.Lakshmi Devi i.e., baby by name Raghu and whereas the other twin baby by name Ravi has continued to reside with his natural Parents.
5(b) It is submitted that the adopted father of plaintiff No.2 M.Narayan was in State Government service ie., in Statics Department and while he was in Government service he was allotted a site bearing No.75 by the then CITB now BDA at Rajajinagar 4th N Block, Bangalore, measuring East to West 50 feet and North to South 40 feet vide possession certificate dated 31.08.1962 and there was 10 feet marginal land within the eastern side of the site bearing No.75 and the same came to be allotted in favour and consequently the BDA has executed the absolute sale deed dated 01.07.2000 in his favour in respect of the site bearing No.75, measuring East to West 60 feet and North to South 40 feet and the said property is the self acquired property of M.Narayan.
5(c) It is submitted that during the life time of M.Narayan he had mortgaged the site/property in favour of Mysore Housing Board vide Registered Mortgaged Deed dated 13.11.1967 and obtained the housing loan of Rs.10,000/-, and consequently the said loan of Rs.10,000/- has been duly discharged by him and whereas the said M.Narayan has once again mortgaged the site/property bearing No.75 in favour of 'Bharat Co-operative Bank Limited vide registered mortgaged deed dated 16.03.1969 and obtained the housing loan of Rs.20,000/- and it is only out of the said amount and also out of his personal earning the said M.Narayan has constructed the residential house consisting of two portion is within the Cellar during the year 1969 and consequently thereafter the said M.Narayan has constructed the Ground Floor and a room within the first floor and whereas, the Plaintiff No.2, his father and deceased mother (Plaintiff No.1) were all residing within the Ground floor of the Schedule Building premises and whereas the Cellar portion was
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR leased out in favour of tenants and whereas the house property bearing No.75, situate at Rajajinagar IV 'N' Block, is the self acquired property of the father of the Plaintiff.
5(d) It is submitted that the elder brother of M.Narayan i.e., M.Devegowda has sworn to an affidavit/declaration dated 03.07.1967 before the First Class magistrate Kolar stating the site/property bearing No.75, situate at 4th 'N' Block, Rajajinagar is the self acquired property of M.Narayan and that he has no manner of right, title, interest or claim over the said property.
5(e) It is submitted that during the life time of M.Narayan he has executed a registered WILL dated 20.03.1995 where by bequeathing the site/property bearing No.75, situate at 4th 'N' Block, Rajajinagar, Bangalore-560010 together with residential house measuring 20 squares comprised in Cellar and Ground Floor in favour of his son viz., Raghu.B.Narayan and in the said WILL the adopted father has clearly stated that he has taken Raghu.B into adoption when he was 9 months old baby and at the time of the execution of the Registered WILL the Plaintiff No.2 was aged about 17 years, and whereas the property bequeathed by the said M.Narayan in favour of the Plaintiff No.2 is not the subject matter of the suit and the said WILL has been produced only to prove the fact that the Plaintiff No.2 was taken into adoption by his adoptive parents viz., Sri.M.Narayan and Smt.C.H.Lakshmi Devi and the Registered WILL is signed by Smt.C.H.Saroja Gopal the biological mother of the Plaintiff No.2 and also by one C.H.Amarnath who is the younger brother of the adoptive mother as witnesses and whereas the said M.Narayan died on 19.10.2014 i.e., almost 19 years after the execution of the registered WILL.
5(f) It is submitted that the Plaintiff No.1- Smt.C.H.Lakshmi Devi who is the adoptive mother of the Plaintiff No.2 Raghu.B.Narayan has executed a registered Release Deed dated 16.12.2017 wherein she has relinquished all her right, title, interest and claim over the site/property bearing No.75 and whereas the said Smt.C.H.Lakshmi Devi died on 11.12.2021.
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR 5(g) It is submitted that in all the school and college records the Plaintiff No.2 father's name has been shown as "M.Narayan" and similarly in the Passport of the Plaintiff No.2 the father's name is shown as M.Narayan and the mother's name is shown as 'C.H.Lakshmi Devi.
2. To delete item No.(a) to (d) as shown in the Plaint schedule and in its place to include item No.(a) to
(e):
Item No.(a) "All that piece and parcel the land bearing Sy. No.35 measuring 2 Acres 9 Guntas in extent situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(b) "All that piece and parcel the land bearing Sy. No.36 measuring 2 Acres 31 Guntas in extent out of 5 Acres 17 Guntas, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(c) "All that piece and parcel the land bearing Sy. No.40 measuring 2 Acres 01 Guntas, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(d) "All that piece and parcel the land bearing Sy. No.59 measuring 20 Guntas in extent out of 1 Acre, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(c) "All that piece and parcel the land bearing Sy. No.11/P7 measuring 2 Acres in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(a) to (e) are adjoining to each other and having common boundaries and the same is bounded on:
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR East by : Tank bed and T.Muniyappa's land West by : Road, North by: Kaluve and then lands belonging to M.Devagowda and M.Ramegowda.
South by: lands of M.Devagowda and M.Ramegowda.
3. To delete item No.(e) to (g) as shown in the Plaint schedule and in its place to include item No.(f) to (g) Item No.(f) "All that piece and parcel the land bearing Sy. No.13/1 measuring 3 Acres 03 Guntas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(g) "All that piece and parcel the land bearing Sy. No.13/6 measuring 13 Guntas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(f) to (g) are adjoining to each other and having common boundaries and the same is bounded on:
East by : Rajkaluve, West by : lands of M.Devegowda & M.Ramegowda, North by : lands of M.Devegowda, M.Ramegowda and Tank bund.
South by : T.Ramegowda and others lands.
4. To delete item No.(h) and in its place to include item No.(h) Item No.(h) "All that piece and parcel the land bearing Sy. No.31 measuring 26 Guntas out of 2 Acres 26 guntas, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District and bounded on:
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR East by : land belonging to Sumithra Srinivas, West by : Pillappa and others lands, North by : lands belonging to M.Krishnegowda and M.Narayan and then Road, South by : lands belonging to M.Devegowda and M.Ramegowda.
5. To delete item No.(i) to (j) as shown in the Plaint schedule and in its place to include item No.(i) to (j):
Item No.(i) "All that piece and parcel the land bearing Sy. No.46 measuring 2 Acres in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(j) "All that piece and parcel the land bearing Sy. No.43 measuring 1 Acre 31 guntas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(i) to (j) are adjoining to each other and having common boundaries and the same is bounded on:
East by : lands belonging to Jeeyappa & sons, West by : lands belonging to M.Devagowda and M.Ramegowda, North by : lands belongs Venkataramanappa and Sy.
No.1.
South by : lands belonging to C.Ramakrishnappa.
6. To delete item No.(k) and (l) as shown in the Plaint schedule and in its place to include item No.(k) and
(l):
Item No.(k) "All that piece and parcel of the land bearing Sy. No.29/1 measuring 0.28 gutnas out of 1 Acre 16 Guntas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR Item No.(l) "All that piece and parcel of the land bearing Sy. No.30 measuring 1 Acre 11 Guntas in extent out of 2 Acres 23 guntas, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District"
Item No.(k) and (l) are adjoining each other and have common boundaries and the same is bounded on:
East by : land bearing Sy. No.31 belonging to M.Krishnegowda and M.Narayan.
West by : lands belonging to C.R.Rudrappa, North by : Karab Kaluve & Road, South by : lands belonging to M.Devegowda and M.Ramegowda.
7. To delete item No.(m) to (t) as shown in the Plaint schedule and in its place to include item No.(m) and
(t):
Item No.(m) "All that piece and parcel of the land bearing Sy. No.15 measuring 0.25 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(n) "All that piece and parcel of the land bearing Sy. No.16/1 measuring 0.27 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(o) "All that piece and parcel of the land bearing Sy. No.19/2 measuring 0.05 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(p) "All that piece and parcel of the land bearing Sy. No.19/4 measuring 0.07 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR Item No.(q) "All that piece and parcel of the land bearing Sy. No.19/6 measuring 0.08 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(r) "All that piece and parcel of the land bearing Sy. No.19/7 measuring 0.06 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(s) "All that piece and parcel of the land bearing Sy. No.19/9 measuring 0.20 gutnas in extent out of 0.35 Guntas, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(t) "All that piece and parcel of the land bearing Sy. No.19/13 measuring 0.02 gutnas in extent, situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(m) and (t) are adjoining each other and have common boundaries and the same is bounded on:
East by : Water Cannel and Bychapura boundary, West by : lands belonging to M.Devegowda and M.Ramegowda, North by : Thoti Inamathi land & Tank bed, South by : land belonging to M.Devegowda and M.Ramegowda,
8. To delete item No.(u) as shown in the Plaint schedule and in its place to include item No.(u):
Item No.(u) "All that piece and parcel of the land bearing Sy. No.29/3 measuring 0.18 gutnas in extent out of 1 Acre 28 guntas together with residential house thereon, situate at
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District and the same is bounded on".
East by : Road, West by : lands belonging to M.Devegowda and M.Ramegowda, North by : land belonging to V.Ramakrishnappa, South by : land belonging to T.Ramegowda & others.
9. To delete item No.(v) as shown in the Plaint schedule and in its place to include item No.(v):
Item No.(v) "All that piece and parcel of the land bearing Sy. No.12 and equal right in the usufructs of Honge trees as per grant order bearing HD/KM:14/2660, dated 16.07.1956 situate at Markandapura Village, Vokkaleri Hobli, Kolar Taluk and District".
10. To delete item No.(w) as shown in the Plaint schedule and in its place to include item No.(w):
Item No.(w) "All that piece and parcel of the land bearing Sy. No.11 measuring 0.16 gutnas in extent, situate at Bychapura, Vokkaleri Hobli, Kolar Taluk and District" and the same is bounded on:
East by : Water Cannel, West by : Markandapura Village gaddi, North by : Tank bed, South by : lands belonging to Jayappa & others.
11. To delete item No.(x) to (AB) as shown in the Plaint schedule and in its place to include item No.(x), (y), (z), (la) & (1b):
Item No.(x) "All that piece and parcel of the land bearing Sy. No.22 measuring 0.20 ½ gutnas out of 1 Acre 01 guntas in extent, situate at Bychapura Village, Vokkaleri Hobli, Kolar Taluk and District".
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR Item No.(y) "All that piece and parcel of the land bearing Sy. No.23 measuring 0.12 gutnas out of 0.24 guntas in extent, situate at Bychapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(z) "All that piece and parcel of the land bearing Sy. No.24 measuring 0.7 gutnas out of 0.14 guntas in extent, situate at Bychapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(1a) "All that piece and parcel of the land bearing Sy. No.25 measuring 1 Acre 08 1½ gutnas out of 2 Acre 17 guntas in extent, situate at Bychapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(1b) "All that piece and parcel of the land bearing Sy. No.26 measuring 2 Acre 08 ½ gutnas out of 4 Acre 17 guntas in extent, situate at Bychapura Village, Vokkaleri Hobli, Kolar Taluk and District".
Item No.(x) to (1b) are adjoining each other and have common boundaries and the same is bounded on:
East by : Water Channel, West by : lands belonging to M.Devegowda and M.Ramegowda, North by : land bearing Sy. No.29, South by : lands belonging to Nayakara Erappa and sons and Tank bed.
Kolar sd/-
Date: 07/09/23 Advocate for Plaintiff"
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NC: 2025:KHC:32377
WP No. 36125 of 2024
HC-KAR
8. The submissions of the learned counsel for the respondent that the amendments would not change the relief sought in the plaint or the nature of the property, is unacceptable. As at the first blush, the submission may seem to be acceptable, but on deeper delving, it is seen that the stage at which the application is preferred and the nature of the application is, seeking amendment of the plaint in its entirety.
Evidence has been lead in, in terms of the pleadings that was made earlier. The evidence is now sought to be erased by way of an amendment and the amendment being allowed at the hands of the concerned Court that too, the amendment is sought at the stage when PW.1 is cross-examined by the present petitioner.
9. The submission of the learned counsel for respondent that it does not alter anything is noted only to be rejected as all the factors that are sought to be brought by way of amendment, were all facts which are prior to the institution of the suit, which plaintiff No.2 at every time was aware. The action of the plaintiff keeping quiet for all the seven years and then seeking for such amendment is only to counter to what
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR was said in the written statement that too, after 5 years of filing of the written statement. The said action of the plaintiff is hit by the proviso to Order VI Rule 17 of the CPC, which mandates that the plaintiff should exercise due diligence at the time of filing of the suit or the defendant in filing the written statement as the case would be.
10. The jurisprudence is indeed settled in this regard as there are plethora of judgments rendered by the Apex Court and of this Court. In one of the judgments passed by this Court while considering the application for amendment of the plaint, by following various judgments of the Apex Court, in W.P.No.16411/2025, disposed on 08.07.2025, has held as follows:
"7. The afore-narrated facts, link in the chain of events and dates are all a matter of record. The issue in the lis is with regard to an application filed under Order VI Rule 17 of the CPC seeking amendment of the plaint qua schedule. Order VI Rule 17 reads as follows:
"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced,
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
(Emphasis supplied) Order VI Rule 17 deals with amendment of pleadings. It allows grant of relief to a party to alter or amend his pleadings at any stage of the proceedings, provided the amendment is necessary to determine the real issues in controversy between the parties. Order VI Rule 17 was subject matter of misuse by filing applications at any stage of the proceedings and the proceedings were being dragged on. Therefore, the legislature introduced the proviso. The proviso limited the power of the Court to allow the application for amendment of the plaint at any stage of the proceedings. This was initially omitted by Act 46 of 1998. Noticing the fact that it had created chaos, to strike a balance, the proviso was re-introduced by Act 22 of 2002 with effect from 01-07-2002. This re-insertion borne consideration at the hands of the Apex Court. This is considered by the Apex Court in the case of KAILASH V. NANHKU-(2005) 4 SCC 480 and AJENDRAPRASADJI N PANDEY v SWAMI KESHAVPRAKESHDASJI - (2006)12 SCC 1. Both these judgments bear consideration of the Apex Court in a subsequent judgment in the case of VIDYABAI v. PADMALATHA1 wherein the Apex Court has held as follows:
"14. In Kailash v. Nanhku [(2005) 4 SCC 480] this Court held: (SCC pp. 490-91, para 13) "13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of 1 (2009) 2 SCC 409
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR decision therein are included within the meaning of the word 'trial'."
15. We may notice that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. [(2006) 12 SCC 1] this Court noticed the decision of this Court in Kailash [(2005) 4 SCC 480] to hold: (Ajendraprasadji case [(2006) 12 SCC 1], SCC p. 13, paras 35-36) "35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.
36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
(Ajendraprasadji case [(2006) 12 SCC 1], SCC pp. 14-15, paras 41-43) "41. We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter-affidavit filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings.
42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002.
43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief."
The ratio in Kailash [(2005) 4 SCC 480] was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
16. Reliance, however, has been placed by Ms Suri on Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] wherein it was opined: (SCC pp. 504-05, para 17) "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings."
It is not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR were yet to be filed and, therefore, it was held that the trial did not commence.
... .... ...
19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
(Emphasis supplied) The Apex Court holds that it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such condition is fulfilled, the amendment is to be allowed. The proviso restricts the power of the Court and puts an embargo on the exercise of its jurisdiction. Therefore, the Court's jurisdiction is now limited. Unless there is jurisdictional fact in any amendment, the Court will have no jurisdiction to allow the amendment to the plaint.
8. The Apex Court again, in the case of J. SAMUEL v. GATTU MAHESH2, elaborating the term 'due diligence' has held as follows:
".... .... ....
20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit."
(Emphasis supplied) Again, the Apex Court in the case of PANDIT MALHARI MAHALE v. MONIKA PANDIT MAHALE3 has held as follows:
2(2012) 2 SCC 300
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR ".... .... ....
4. The learned counsel for the appellant submits that evidence had already begun and in view of Order 6 Rule 16 of the Code of Civil Procedure, 1908 the amendment could not have been considered unless the Court returned a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial."
(Emphasis supplied) On the bedrock of the principles laid down by the Apex Court, the travel of the suit is necessary to be noticed. As observed hereinabove, the suit is filed for permanent injunction. It is instituted on 16-09-2011 with a particular schedule in the plaint. The schedule as found in the plaint reads as follows:
"SCHEDULE PROPERTY All that piece and parcel of the residential converted property bearing Sy.Nos. 60/4 and 61 admeasuring 30,000 sq.ft. of land, situated at Yediyur Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore and bounded on the East by - Private property West by - K.R.Road North by - Private property South by - Private property."
The schedule contains two survey numbers viz., Sy.Nos. 60/4 and 61 together measuring 30,000 sq.ft. The defendants filed their written statement bringing out true facts as to how the claim of the plaintiffs is untenable. The written statement is filed on 28-01-2012. On the basis of the pleadings in the plaint and the written statement, issues are framed by the concerned Court on 4-01-2013. 12 years passed by after framing of issues, 14 years after filing of the suit and 13 years after filing of the written statement. The matter is posted for final arguments. Plaintiffs and the defendants had completed their arguments. The matter was posted for reply of the plaintiffs. It is at that 3 (2020) 11 SCC 549
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR stage the present application comes to be filed seeking amendment of the plaint by which they seek deletion of Sy.No.61 from the plaint schedule.
9. The obfuscation in the case is with regard to 30,000 sq. ft. jointly found in Sy.Nos.60/4 and 61 and continues. The contention now is that Sy.No.60/4 itself has 30,000 sq.ft. Therefore, the amendment to the measurement in the plaint would undoubtedly cause prejudice to the defendants. The learned counsel for the defendants has placed on record a suit filed by the plaintiffs in O.S.No.7943 of 2003 which pertained to Sy.No.60/4 and the present suit is filed for both Sy.Nos. 60/4 and 61. Therefore, it is a case where it would undoubtedly to some extent change the nature of the suit. Therefore, the plaintiffs ought to have exercised due diligence prior to filing of the suit. Now at the fag end when the matter is posted for reply arguments of the plaintiffs, the application comes to be filed. In terms of the order passed by the concerned Court and the statement of objections, the real question in controversy relate to both Sy.Nos. 60/4 and 61. Therefore the application seeking amendment of schedule to the plaint prima facie cause prejudice to the defendants. Above all, it is preferred after 14 years of instituting the suit.
10. The Apex Court, in its latest judgment, in the case of BASAVARAJ v. INDIRA4 holds that burden of proving due diligence is upon the party who seeks amendment. The Apex Court has held as follows:
".... ..... ....
10. The proviso to Order 6 Rule 17CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of Respondents 1 and 2 before the trial court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be 4 (2024) 3 SCC 705
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of Respondents 1 and 2-plaintiffs.
11. The relevant paragraphs of the application seeking amendment of the plaint are reproduced hereunder:
"2. That, due to oversight and by mistake the plaintiff was unable to sought relief declaration of decree as null and void and unable to pay required court fee some unavoidable circumstances and the proposed amendment is very essential for deciding the matter in dispute.
***
4. That, if the proposed amendment is allowed no prejudice will be cause to the other side, on the other hand if it is not allowed then the deponent will be put to great loss and will also leads multiplicity of litigations. Hence it is just and proper to allow the proposed amendment to meet the ends of justice."
(sic)
12. This Court in M. Revanna v. Anjanamma [M. Revanna v. Anjanamma, (2019) 4 SCC 332 : (2019) 2 SCC (Civ) 338] opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order 6 Rule 17CPC prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Para 7 thereof is extracted below : (SCC p. 335) "7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
(emphasis supplied)
13. Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible.
14. This Court in Revajeetu case [Revajeetu Builders & Developers v. Narayanaswamy& Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.
15. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application."
(Emphasis supplied) The Apex Court has considered all the judgments that the learned senior counsel has sought to place reliance upon.
11. In the light of elucidation of law, it becomes necessary to notice the order passed by the concerned Court. The reasons so rendered are as follows:
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NC: 2025:KHC:32377
WP No. 36125 of 2024
HC-KAR
".... .... ....
17. I read the facts and circumstances of the aforesaid case and also principles of law laid down in the above judgments. They have to be kept in mind while appreciating the facts and circumstances under which, the proposed amendment is sought for by the plaintiffs. I read the pleadings of the plaintiffs along with the materials available on record including the evidences both oral and documentary since, the present application is filed at the stage of fag end of the proceedings i.e., the reply arguments of the plaintiffs on the arguments of the defendants. The learned Counsel for the plaintiffs during the arguments on this application drawn the attention of this Court that in Ex.P28 and Ex.P29, the subject matter of the suit was the land bearing Sy.No.60/4 of Yediyuru Village, Uttarahalli Hobli, Bengaluru South Taluk which is measuring East to West 100 feet and North to South 300 feet. The said suit was decreed declaring that the plaintiffs are the owners of the said property and they are in possession thereof. The learned Counsel for the plaintiffs have also drawn the attention of this Court to Ex.P26 stating that in the said document also the 2nd defendant stated that the land bearing Sy.No.60/4 of Yediyuru Village, Uttarahalli Hobli, Bengaluru South Taluk is measuring East to West 100 feet and North to South 300 feet. The arguments of the learned Counsel for the plaintiffs are that the proposed amendment is in consonance with the said documents and therefore, the proposed amendment is just and necessary to determine the real dispute in controversy between the parties. If the said arguments of the learned Counsel for the plaintiffs are considered, it appears that the above referred two documents states that Sy.No.60/4 measuring 30,000 square feet is the claim of the plaintiffs.
18. But, the learned Counsel for the defendants drawn the attention of this Court to the oral evidences deposed by PW1. In examination-
in-chief, PW1 has deposed that the land bearing Sy.Nos.60/4 and 61 is totally measuring 30,000 square feet is their claimed property in the present suit. PW1 in his cross-examination that in Sy.No.60/4, the are measuring 30,000 square feet came to his share and no portion was allotted to him in Sy.No.61. The arguments of the learned Counsels for the defendants are that if the proposed amendment is permitted, the said
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR admission of PW1 made in cross-examination will be taken away. In such an event, prejudice and injustice will be caused to the defendants. The learned Counsels for the defendants have also drawn the attention of this Court on Ex.P14 to Ex.P16 wherein, it is stated that the residential converted property bearing Sy.Nos.60/4 and 61 admeasuring 30,000 square feet. They are admitted documents of the plaintiffs. The learned Counsels for the defendants have also drawn the attention of this Court on Ex.P21 wherein, it appears that the plaintiffs herein have claimed in the said suit that they are the owners of the vacant land measuring 100 X 300 feet in Sy.No.60/4 and 61 of Yediyuru Village. This is a judicial admission of the plaintiffs before the Court. If the above facts facts and circumstances are considered together, it appears that the proposed amendment is not just and necessary to determine the real dispute in controversy between the parties. It will take away the admissions brought during the trial. In such an event, prejudice and injustice will be caused to the defendants.
19. The reasons assigned by the Partner of the 16th plaintiff is that by oversight, at the time of filing of the suit, the land bearing Sy.No.61 is mentioned and it was noticed when the learned Counsel for the plaintiffs preparing for the arguments. This reason cannot be accepted as due diligence on the part of the plaintiffs for non- seeking the proposed amendment before commencement of the trial. In the judgments relied by the learned Counsels for defendants No.1 to 10 in the cases between J.Samuel and others V/s Gattu Mahesh and others [(2012) 2 SCC 300], Chander Kanta Bansal V/s Rajinder Singh Anand [(2008) 5 SCC 117] and Sadana V/s Mahabaleshwar and others (2020 SCC OnLine Kar 5626), the meaning of the word due diligence are explained and it is held that if the party seeks amendment is not proved such due diligence is not entitle for the amendment of the pleadings after the commencement of the trial. In the light of the principles of law laid down in the above judgments if the reason assigned by the Partner of the 16th plaintiff are considered, the plaintiffs have not satisfied this Court that in spite of due diligence, they could not seek the proposed amendment before the commencement of the trial. Under these
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR circumstance, the plaintiffs have not shown sufficient reason to permit them to amend the plaint as prayed..."
(Emphasis supplied) The concerned Court considers entire spectrum of law as placed before it by the respective parties on due diligence and also the purport of an application under Order VI Rule 17 CPC filed at the fag end of the trial. What is projected is that no prejudice would be caused by changing the survey number or deleting the survey number in the plaint schedule property. Considering an identical issue, a coordinate Bench of this Court in the case of C.LAKSHMINARAYANA v. N.NARASIMHAIAH5 has held as follows:
".... .... ....
9. It is relevant to note that in agricultural properties, the boundaries to the schedule plays a major role in survey number of the property and therefore, in view of the provisions of Order VI, Rule 17 where there is an embargo that no application shall be allowed after the trial is commenced unless there is due diligence which is shown by the parties seeking for such amendment and it is also to be noted that such prayer for amendment should be taken into consideration having regard to any prejudice that could be caused to the other side. The petitioner cannot seek amendment as a matter of right and nor does the Court have absolute discretion of amendment in view of the proviso to Order VI, Rule 17."
(Emphasis supplied) The coordinate Bench holds that seeking change in survey number undoubtedly causes prejudice.
12. It is trite law that reasons must be assigned to explain the delay in filing the application. The affidavit so filed in support of the application seeking amendment nowhere indicates plausible explanation for the delay. What is said in the affidavit is as follows:
5(2020) SCC Online Kar 5582
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR ".... .... ...
7. I submit that, now the matter is posted for reply arguments on merits. At the time of preparing the arguments, my counsel noticed that, the Sy.No.61 was mentioned in the suit schedule property due to oversight but the said Sy.No.61 is no way connected to the suit schedule property of Sy.No.60/4.
8. I submit that, it is now come to the knowledge that Sy.No.61 was wrongly mentioned in the suit schedule property. Hence, this Hon'ble Court may be pleased to permit the plaintiff to delete the said Sy.No.61 in the plaint at para-2 and suit schedule property.
9. I submit that the said amendment in no way changes the cause of action or alters the nature of the suit and further I state that no additional evidence is also required as I am seeking deletion of only one Sy.No.61 in the suit schedule property and the documents already placed are sufficient to adjudicate on the issue.
10. I submit that, the amendment sought for is necessary for the full and final adjudication of the matter in dispute and so also to avoid multiplicity of proceedings and any complication while executing the Decree in the event we succeed in the matter.
11. I submit that it is only due to oversight and since the plaintiff family was owning land in both the survey numbers Sy.No.61 is also mentioned and therefore inspite of due diligence the same could not be done at the earliest.
12. I submit that, the amendment sought for is bonafide and the delay in filing the same if any is also unintentional one.
13. I submit that, I have good case on merit and it is only due to bonafide reasons started above, the amendment now sought for could not be incorporated at the earliest point of time.
14. I submit that, if the accompanying application is allowed, no hardship or injury will be caused to the Defendants, on the other hand, if the same is rejected, I will be put to great difficulty and hardship which cannot be compensated in any manner what so ever."
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR What is projected is by oversight the said survey number is incorporated and to avoid multiplicity of proceedings and complication while executing the decree, the plaintiffs are seeking amendment. This can hardly be said to be plausible explanation for the delay. The entire edifice of evidence by the parties is built on the plaint schedule property, now to say, it is only a minor mistake is sans acceptance. Above all, Delay is not a month or 14 months; it is 14 years. In the light of legislative imperativeness of due diligence of any party seeking amendment to the plaint, as found in the proviso to Order VI Rule 17 of the CPC, the order challenged rejecting the application does not warrant interference.
13. Insofar as the judgments relied on by the learned senior counsel for the petitioners with regard to the purport of Order VI Rule 17 CPC, there can no qualm about the principles laid down therein. He has placed heavy reliance upon the judgment in the case of DINESH GOYAL @ PAPPU v. SUMAN AGARWAL (BINDAL)6 wherein the Apex Court has held as follows:
".... .... ....
12. The question that we have to consider, in the above backdrop is whether the High Court fell in error in allowing the application seeking leave to amend pleadings, in contravention of the statutory language.
... ... ...
17. Any and all delays in judicial processes should be avoided and minimised to the largest extent possible, and should generally be, and are rightly frowned upon. However, not in all cases can delay determine the fate of a Suit. The defendant submits that the time gap between submitting the written statement to the Suit and the presentation of the application seeking leave to amend is unexplained. If this argument of the defendant is accepted, the question of Will shall remain undecided or at best will be decided with great delay. The trial which has admittedly already commenced, would be stalled by way of a challenge to the framing of issues which, in turn, would not be in consonance with the object of Order VI Rule 17 of CPC which is aimed at preventing 6 2024 SCC OnLine SC 2615
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute."
The Apex Court holds that any and all delays in judicial processes should be avoided and minimised to the largest extent possible. However, not in all cases can delay determine the fate of the suit. The defendant therein had contended that the time gap between the written statement to the suit and the present application seeking leave to amend is unexplained. Even then the Apex Court permitted the amendment on the ground that it was an issue of a Will, which will remain open even after disposal of the suit and result in multiplicity of litigation. The said judgment is distinguishable, on the facts obtaining in the case at hand, without much ado. Though Order VI Rule 17 of the CPC as amended, permits amendments to pleadings at any stage, but tempers such liberty with a proviso that postulates the necessity of due diligence. The rationale is unmistakable, it is to curb interminable litigation and to ensure trials are not derailed by belated pleas. Proviso to Rule 17 of the CPC, is thus, not an ornamental appendage, but a substantive limitation.
14. Therefore, the delay of 14 years in preferring the application cannot be brushed aside. The concerned Court has on rendering cogent reasons, has rightly rejected the application. The order does not warrant any interference."
In the afore-quoted judgment of this Court, the delay was 14 years. The delay though in the case at hand is eight years, it undoubtedly changes the nature of the suit and effaces the evidence that has lead in, till date. Though the period is less, the elucidation of law which have been borne consideration in the afore-quoted judgment would squarely apply to the case at
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NC: 2025:KHC:32377 WP No. 36125 of 2024 HC-KAR hand. The concerned Court has grossly erred by allowing the application seeking amendment only for its asking. In view of the preceding analysis and the law, the impugned order is rendered unsustainable.
11. For the aforesaid reasons, the following:
ORDER a. The writ petition is allowed.
b. The order dated 17.12.2024, passed by the III Additional Senior Civil Judge and JMFC, Kolar, stands quashed.
c. The concerned Court to regulate its procedure and take the suit to its logical conclusion, in accordance with law.
Ordered accordingly.
Sd/-
(M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 61