Karnataka High Court
Shri Shivanand Chandrashekarappa ... vs Smt. Sangavva W/O Sangappa Chinivalar on 17 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:12371-DB
RFA No. 100003 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 17TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100003 OF 2022 (PAR/POS)
BETWEEN:
SHRI. SHIVANAND
CHANDRASHEKARAPPA KALYANASHETTI,
AGED ABOUT 68 YEARS,
OCC. PVT. SERVICE,
R/O. 2ND CROSS,
CHALUKYA NAGAR,
(K.M.PATTANASHETTI ROAD),
BADAMI 587201.
...APPELLANT
(BY SRI. ASHOK R.KALYANASHETTY, ADVOCATE)
YASHAVANT
AND:
NARAYANKAR
1. SMT. SANGAVVA
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH COURT
W/O. SANGAPPA CHINIVALAR,
OF KARNATAKA
DHARWAD BENCH
DHARWAD AGE: 64 YEARS,
OCC: HOUSEHOLD WORK,
BADARI CHAWL,
AT. BADAMI 587201.
DIST: BAGALKOT.
2. SMT. ANNAPURNA
W/O. SURESH KADAGANCHI,
AGE: 59 YEARS,
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NC: 2025:KHC-D:12371-DB
RFA No. 100003 of 2022
HC-KAR
OCC: HOUSEHOLD WORK,
R/O. NEAR SWAMI SAMADHI,
AKKALKOT, AT. AKKALKOT-413216,
DIST: SOLAPUR,
MAHARASTRA STATE.
3. SMT. GANGAWWA
W/O. BASAVARAJ SHIRUR,
AGE: 66 YEARS,
OCC: HOUSEHOLD WORK,
R/O. CHOLACHAGUDDA-587201,
AT. BADAMI,
DIST: BAGALKOT.
4. BASAVARAJ
CHANDRASHEKARAPPA KALYANASHETTI,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O. KALLIPETH,
PATTANASHETTI ONI,
AT. BADAMI-587201.
5. SMT. GEETA
W/O. RAJANNA KORI,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. RAJUR-582114,
TQ: RON, DIST: GADAG.
6. SHRI. BASAVANT
RAMACHANDRA KAMBALE,
AGE: 36 YEARS,
OCC: AGRICULTURE,
R/O. SINDAGI,
DIST: VIJAYAPUR-586128.
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NC: 2025:KHC-D:12371-DB
RFA No. 100003 of 2022
HC-KAR
7. SMT. MAHATAWWA
W/O. CHANNABASAPPA ANGADI,
AGE: 78 YEARS,
OCC: HOUSEHOLD WORK,
R/O. IHOLE,
TQ: BADAMI-587124.
8. SMT. GIRIJA
W/O. BASAVARAJ KALYANASHETTI,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. PATTANADAVAR ONI,
BADAMI, TQ: BADAMI.
...RESPONDENTS
(BY SRI. PRAKASH HOSAMANE,
ADVOCATE FOR R1 TO R3 AND R5;
SRI. R.M.KULKARNI AND
SMT. SHANTA B.PATIL, ADVOCATES FOR
SRI. CHETAN MUNNOLI, ADVOCATE FOR R4 AND R8;
SRI. S.C.HIREMATH, ADVOCATE FOR R6)
(NOTICE TO R7 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 22.09.2021 PASSED IN
O.S.NO.34/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, BADAMI, DISMISSING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2025:KHC-D:12371-DB
RFA No. 100003 of 2022
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal by the unsuccessful plaintiff in O.S. No.34/2013 is directed against the impugned judgment and decree dated 22.09.2021 passed by the Senior Civil Judge & JMFC, Badami (for short, 'the Trial Court'), whereby the said suit filed by the appellants/plaintiffs against the respondent / defendant for partition and separate possession of his share in the suit schedule properties was dismissed by the Trial Court.
2. For the purpose of convenience, the parties are referred to by their respective ranks before the Trial Court.
3. Briefly stated, the facts giving rise to the present appeal are:
(a) The appellant/plaintiff is the son of one late Chandrashekarappa Kalyanshetty and late Irawwa, who expired on 11.12.1981 and 26.09.2005 respectively leaving behind the appellant/plaintiff and respondents No.1 to 5/defendants No.1 to 5 to succeed to his estate as his heirs and legal representatives. Defendants Nos.6 to -5- NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR 8/respondents No.6 to 8 are said to be purchasers in respect of certain portions of the suit schedule properties. According to the plaintiff, the suit schedule properties were joint family properties in joint possession and enjoyment of the plaintiff and defendants No.1 to 5 and since defendant No.4 alienated some of the properties in favour of defendants No.6 and 8 depriving the plaintiff of his legitimate share in the suit schedule properties, the plaintiff instituted the aforesaid suit for partition and separate possession of his alleged share in the suit schedule properties and for other reliefs.
(b) Defendants No.1 to 5 filed their written statement disputing and denying the various allegations and claims made by the plaintiffs. It was contended that item No.1 and 2 of the suit schedule properties were separate and self-acquired properties of defendant No.4 and that the plaintiff does not have any manner of right, title, interest or possession over the same. It is also contended that the suit for partition was not maintainable and the same was liable to dismissed.
Defendants No.6 and 8 also filed their separate written -6- NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR statement and contested the claim of the plaintiff and sought for dismissal of the suit.
(c) Based on the aforesaid pleadings, the Trial Court framed the following issues:
":ISSUES:
1 Whether the plaintiff proves that all the suit schedule properties are ancestral, joint family properties of himself and the defendant No 1 to 5?
2 Whether the defendants prove that Sy. No 288/1A, 288/1B and Sy. No 289 are the self-acquired properties of the defendant No 4?
3 Whether the defendant No 6 proves that he is a bonafide purchaser for valuable consideration of survey number 288/1A and survey number 288/1B?
4 Whether defendants prove that survey number 175/ETA of Yarragoppa village and CTS No 2909/55 of Badami are self-acquired properties of defendant number eight?
5 Whether the suit is bad for non-joinder of all the properties?-7-
NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR 6 Whether the plaintiff is entitled for 1/6 shares or any share in the suit schedule properties? 7 Whether plaintiff is entitled for the relief of partition and separate possession as prayed for? 8 To What order or decree?"
(d) Plaintiff examined himself as P.W.1 and two more witnesses as P.W.2 and P.W.3 and documentary evidence at Exs.P.1 to P.40 were marked on his behalf. Defendant No.4 examined himself as D.W.1, while defendant No.8 and defendant No.6 examined themselves as D.W.2 and D.W.3 respectively and documentary evidence at Ex.D.1 and D.50 were marked on their behalf. After hearing the parties, the Trial Court proceeded to dismiss the suit by passing the impugned judgment and decree which is assailed in the present appeal.
4. During the pendency of the present appeal, the appellant has filed I.A. No.1/2025 seeking amendment of the plaint which is opposed by the respondents by filing their statement of objections to the said application.
5. Heard the learned counsel for the appellant and the learned counsel for respondents No.4 and 8 as well as the -8- NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR learned counsel for remaining respondents and perused the material on record.
6. Learned counsel for the appellant would invite our attention to the judgment and decree in order to point out that the Trial Court has failed to consider and appreciate the oral and documentary evidence in their proper perspective thereby resulting in erroneous conclusions. It was pointed out that though the appellant produced Ex.P.34, "M¥ÀàAzÀ ¥ÀvæÀ" dated 16.05.2006 executed between plaintiff and defendant No.4, which indicates that the plaintiff had contributed funds for the purchase of items No.1 and 2 of the suit schedule properties, the Trial Court committed an error in rejecting the said documents and as such, the said finding rendered by the Trial Court deserves to be set aside. It is further submitted that since the Trial Court has recorded a finding that the said contention of the appellant/plaintiff based on Ex.P.34 dated 16.05.2006 cannot be accepted due to want/lack of pleadings in this regard, the plaintiff has filed the instant application i.e., I.A. No.1/2025 seeking amendment of the plaint. It is therefore, submitted that the application - I.A. No.1/2025 filed by the appellant deserves -9- NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR to be allowed and the impugned judgment and decree passed by the Trial Court deserves to be set aside and the suit of the plaintiff deserves to be decreed in his favour.
7. Per contra, learned counsel for respondents No.4 and 8 would support the impugned judgment and decree and contend that the Trial Court has correctly and properly considered and appreciated the entire material on record and has come to the correct conclusion that the plaintiff was not entitled to a share in item Nos.1 and 2 of the suit schedule property. Learned counsel would invite our attention to the amended provisions contained in Order VI Rule 17 of the Code of Civil Procedure, 1908, in particular, the proviso inserted by way of amendment with effect from 01.07.2002 in order to point out that the plaintiff has neither averred nor established that he had exercised due diligence in not seeking amendment prior to commencement of the trial. It is also submitted that thought he suit was initially filed on 19.07.2013, and the appellant/plaintiff having filed I.A. No.2 also under Order VI Rule 17 CPC seeking amendment of the plaint as long as back on 11.08.2014, the plaintiff did not choose to state anything as regards Ex.P.34 in the original plaint or in
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR the amended plaint, much less in his evidence that was recorded on 24.09.2018, which demonstrates that the plaintiff was guilty of not exercising due diligence in not seeking amendment prior to commencement of trial. It was also submitted that the affidavit filed in support of the application for amendment does not make out valid or sufficient grounds to establish that the plaintiff could not seek amendment despite exercise of due diligence before the Trial Court in terms of the proviso to Order VI Rule 17 of CPC. Under these circumstances, he would submit that this is not a case to show any indulgence in favour of the appellant/plaintiff by permitting amendment and the application
- I.A.No.1/2025 is liable to be dismissed. In support of his submission, learned counsel for respondents No.4 and 8 would place reliance upon the following judgments:
i) Basavaraj Vs. Indira and Others1
ii) The Municipal Corporation of Greater Bombay v. Lala Pancham and others2,
8. We have given our anxious consideration to the rival submissions and perused the material on record. 1 2024(1) KCCR 869 (SC) 2 AIR 1965 SC 1008
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR
9. The following points arise for consideration in the present appeal:
(i) Whether the application I.A. No.1/2025 filed by the appellant/plaintiff under Order VI Rule 17 of CPC seeking amendment of the plaint deserves to be allowed?
(ii) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?
10. Before adverting to the rival contentions, it is essential to advert to the proposed amendment to the plaint sought for by the appellant/plaintiff which is as under:
PROPOSED AMENDMENT:
"That the defendant No.4 by executing "Oppand Patra and Kabja Pavati Besmi" dated 16.05.2006 on stamp paper dated 16.05.2006 purchased by him has acknowledged my contribution of Rs.1,05,000 out of Rs.1,10,000 towards sale consideration amount to purchase the two suit lands R.S.No.288/1(2A-20G) and R S No.288/1B (2A-20G) both of Badami, my right and interest to the extent of half share on par with his ½ share therein, and that he will not alienate or encumber or transfer the said two
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR lands without my permission as detailed therein in the presence of plaintiff two witnesses named therein".
11. In the affidavit in support of the application, the appellant has reiterated the various facts and contentions urged by him in the suit and appeal and the documents produced by him and stated that in the original/amended plaint itself, the plaintiff had already stated that he had contributed money and had half share in item Nos. 1 and 2 of the suit schedule properties. At paragraph 8 of the of the affidavit in support of the application, the plaintiff refers to IA No. 5 dated 02.11.2018 filed by him under Order XI Rule 14 CPC for production of exhibit P34 which was allowed by recalling PW1 and the said P34 was marked as an exhibit before the trial court, after payment of requisite duty and penalty. The plaintiff also contends that apart from other reasons assigned by the trial Court to reject the claim of the plaintiff based on Exhibit 34, the trial Court also recorded a finding that Exhibit P34 cannot be relied upon by the
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR appellant-plaintiff for want of necessary pleadings in this regard.
12. The appellant-plaintiff has contended that the proposed amendment in relation to exhibit P34 was just and necessary for the purpose of determining the real issue in controversy between the parties in respect of Item Nos. 1 and 2 of the suit schedule property over which there was already an averment made in the original plaint/amendment plaint and that the proposed amendment sought for vide IA No. 1 of 25 was merely in support of the earlier averments by way of clarity and basis for the effectual adjudication, since the documents in this regard had already been marked in evidence as exhibit P34 on behalf of the plaintiff. The plaintiff contended that the proposed amendment does not in any way change or alter the nature or character of the suit or its causes and that no prejudice would be caused to the respondents-defendants if the proposed amendment were to be allowed since they would have an opportunity to file their additional written statement and the controvert the
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR averments made in the proposed amendment. It was also submitted that the proposed amendment is neither barred by limitation nor does it take away any right having stood vested in the respondents-defendants by lapse of time and since the proposed amendment was necessary and essential to adjudicate upon the issues in controversy between the parties, it is just and proper to allow the amendment, failing which the petitioner would be put to irreparable injury and hardship.
13. In the statement of objections to IA No.1 of 25, the respondents-defendants would contend that the proposed amendment is not bonafide in nature and filed with the ulterior motives/purpose of dragging on the proceedings. It was pointed out that the existence of exhibits P11, P12 or P34 are not been pleaded by the plaintiff in the original plaint/amended plaint and in the light of proviso to Order VI Rule 17 CPC, which mandates exercise of due diligence as to why the plaintiff could not
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR put forth the proposed pleading prior to commencement of trial, the proposed amendment cannot be accepted.
14. The various contentions regarding merits/ demerits relating to the said document as averred by the plaintiff has been specifically denied by the respondents- defendants in their statement of objections.
15. In this context, a perusal of the impugned judgment and decree will indicate that in addition to rejecting the claim of the appellant-plaintiff based on exhibit P34, the trial Court has clearly held that in the absence of necessary pleadings, it is not permissible for the appellant- plaintiff to rely upon exhibit P34. In fact the trial Court refers to the cross examination of PW1 that since PW1 had admitted that he had given exhibit P34 to his lawyer at the time of filing the suit, the same was not pleaded by the plaintiff in the original plaint. The relevant portion of the impugned judgment and decree at paragraph No.33 is as under:
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR "33. The property purchased in the name of the defendant No.4 i.e., Sy No.288/1 to an extent of 5 acres, but the plaintiff has very much relied on Ex.P.34 the prove that he has paid the amount to the defendant No.4 to purchase the said property in the name of defendant No.4. Admittedly, this document is not produced along with the plaint. Even there was no recital about this document at the initial stage in the plaint. Even at the time of adducing evidence of P.W.1 there is whisper by the plaintiff about this document. But subsequently, after getting amendment of the plaint the plaintiff has produced this document in the evidence. He has categorically, admitted that, this document was in his custody, before institution of the suit and before adducing his evidence, under such circumstances, what prevented him to plead and produced this document. At initial stage of institution of the suit. This creates suspicious about this document. Even to prove this document the witness have been examined as P.W.2 and 3, but, they have not supported to the case of the plaintiff to prove execution of Ex.P.34. This witnesses are the subordinate employees of the plaintiff and they deposed that they does not know about the contents of Ex.P.34. In such circumstance the probabality of the case of defendant No.4 cannot be ruled out because the defendant No.4 has contended that at the time of renewal of the loan in to Veerapulakeshi Bank he has produced some signed blank stamp papers to the bank and the plaintiff being the employee in the said bank has got the said document and prepared the same according to his wishes. If really this document was in existence on the date of institution of the suit, no prudent man will keep quite to plead and produced the document. In the cross examination of P.W.1, he deposed that, he has given the said document to his Advocate at the time of filing of the suit, if that is the case, what prevented the counsel to plead about
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR this document. Though this is rightly pointed out by the counsel for the defendant that as on the date of institution of the suit and even after filing of the chief examination affidavit this document was not taken birth, but, subsequently came into existence. The learned counsel for the plaintiff during the time of arguments has argued that whatever the amendment taken place to the pleadings it goes to the date of the institution of the suit and hence, the subsequent pleadings to be considering from the date of institution of the suit. It is true that whatever the amendment taken place subsequent to the suit will consider from the date of institution of the suit. But, if any suspicious circumstance arises regarding the facts, then the court has to analise, under what circumstance the subsequent pleadings came into existence and what was the document relied on subsequent pleadings. In this case, since, this document is material document for the plaintiff to establish that he has paid consideration amount to the defendant for purchase of the property in the name of defendant No.4, under such circumstances, no person will silent to plead this kind of material document. Even as I have already stated above the witnesses have not supported to the case of the plaintiff about due execution of the same."
16. The aforesaid finding recorded by the trial Court for the purpose of rejecting the claim of the plaintiff based on Exhibit P34 will clearly indicate that apart from other reasons, the trial Court also came to the conclusion that in the absence of pleadings or amended pleadings in relation to exhibit P34 which was a material document in support of
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR his claims, no reliance could be placed by the plaintiff upon the said document in support of his claims. It follows there from that pleadings and proof as regards exhibit P34 would be relevant, essential and necessary for purpose of adjudication of the issues in controversy between the parties, especially when the plaintiff specifically places reliance upon exhibit P34 to lay a claim over item Nos.1 and 2 of the suit schedule properties, which has been specifically disputed and denied by the respondents/defendants.
17. Under these circumstances, we are the considered opinion that the proposed amendment is relevant and necessary for the purpose of adjudication of issues in controversy between the parties and the proposed amendment deserves to be allowed.
18. Insofar as the contention urged by the respondents-defendants that the appellant had not exercised/neither pleaded nor proved exercise of due diligence as to why he could not put forth the present
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR pleading prior to commencement of trial is concerned, in the affidavit in support of the application, the plaintiff has narrated in detail as to how exhibit P34 was not initially produced by him but produced subsequently along with IA No.5 under Order VII to Rule 14 CPC for production of documents which was allowed by the trial Court, subsequent to 02.11.2018 pursuant to which, the said document was permitted to be produced and marked in evidence as exhibit P34 upon the appellant-plaintiff paying requisite stamp duty and penalty. In fact, parties went to trial based on the rival pleadings and during the course of evidence, the appellant-plaintiff produced exhibit P34 in relation to which the respondents-defendants cross examined the appellant-plaintiff (PW1) on all aspects including the said document. It was only subsequently when the impugned judgment and decree was passed by the trial Court that a finding has been recorded that one of the reasons to reject exhibit P34 was the absence of necessary pleadings in this regard. In this factual matrix obtaining in
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR the instant case, especially having regard to the production of exhibit P34, after payment of requisite stamp duty and penalty and having been cross examined by the defendants on this document also, it cannot be said that the plaintiff did not exercise due diligence in not putting forth the necessary pleadings in this regard. Consequently, the said contention urged on behalf of the respondents-defendants cannot be accepted.
19. In any event, a perusal of the affidavit in support of IA No.1/2025 is also sufficient to show that valid and sufficient grounds and cause has been made out by the appellant to seek amendment of the plaint, albeit, appellate stage. Viewed from this angle also, we are of the view that the proposed amendment deserves to be allowed.
20. Insofar as the contention urged on behalf of the respondents-defendants that they would be put to prejudice and hardship if, the proposed amendment were to be allowed is concerned, the principles underlying the
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR amendment of pleadings has been reiterated by the Hon'ble Apex Court in the case of Ganesh Prasad vs Rajeshwar Prasad3, wherein at paragraph Nos.32 to 48, it is held as under:
ANALYSIS
32. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is whether the High Court committed any error in passing the impugned order.
33. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511, the law has been laid down by this Court in the following terms: (SCC p. 517, para 16) "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda 3 2023 SCC Online 256
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166].)"
34. In the case of P.A. Jayalakshmi v. H. Saradha reported in (2009) 14 SCC 525, the above observations were reiterated by this Court and in the light of the same, this Court in para 9 held as under:
"9. By reason of the Code of Civil Procedure (Amendment) Act, 1976, measures have been taken for early disposal of the suits. In furtherance of the aforementioned parliamentary object, further amendments were carried out in the years 1999 and 2002. With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order 6 Rule 17 which reads as under:
"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
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR 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.""
35. In B.K.Narayana Pillai v. Parameswaran Pillai reported in (2000) 1 SCC 712, this Court referred to the following passage from A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96 wherein, it was held as follows:--
"4. This Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96 : (1966) 1 SCR 796] held:
"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal [[L.R.] 19 Q.B. 394 : 56 LJ QB 621]. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation : See Charan Das v. Amir Khan [AIR 1921 PC 50 : ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 : 1957 SCR 438] The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith [[L.R.]
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR 26 Ch. 700 : 53 LJ Ch 891 : 51 LT 729]) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644 : 11 Bom LR 1042] approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : 1957 SCR 595]).
The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill [[L.R.] 8 C.P. 107 : 42 LJCP 98 : 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. [[1962] 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas' : Dornan v. J.W. Ellis and Co. Ltd. [[1962] 1 All ER 303 (CA)] This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time."
Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held : (SCC p. 399, para 22)
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held : (SCC p. 93, para 4) "4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."......"
36. In one of the recent pronouncements of this Court, in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:
"70. ..... (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)"
37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
38. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.
39. In the case on hand, the first suit filed in the Small Causes Court was on the premise that the Defendant as a tenant was in arrears of rent and had unlawfully inducted sub-tenants in the tenanted premises. Thus, the Plaintiffs put forward a case, as if, there was a landlord tenant relationship between the parties. The said
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR suit came to be dismissed for non-prosecution. Later in point of time, the present suit came to be filed in the Civil Court with the prayer that the Plaintiffs be permitted to redeem the mortgage and take back the possession of the suit property.
40. It appears that the present suit in which the courts below permitted the Plaintiffs to amend the plaint is based on the stance taken by the Defendant in his written statement filed in the first suit i.e., the Small Cause Case No. 3 of 2007, which came to be dismissed for non-prosecution. However, it appears that the Plaintiffs have not given up their case that the Defendant is a tenant in the suit property and has inducted sub- tenants. It is also the case of the Plaintiffs that the Defendant is in arrears of rent. Thus, the stance of the Plaintiffs in the present suit is two-fold. First, as regards the tenant-landlord relationship and secondly, the case of redemption of mortgage.
41. The pleadings are so poor and pathetic that as a result, this Court found it extremely difficult to understand what the Plaintiffs intend to say by way of the amendment. With lot of effort, ultimately what we have been able to understand is that the father of the Appellant Defendant, namely, late Gulab Chand was the mortgagee of the suit property. The father of the Plaintiffs, namely, late Harihar Prasad was the mortgagor and he executed a mortgage deed dated 12.02.1957 in favour of the father of the Appellant Defendant for a sum of Rs. 700/-. The grandfather of the Appellant Defendant, namely, late Laxman Prasad remained in occupation of the suit property as a tenant from the year 1953 at the rate of Rs. 23 monthly rent and later the father of the Appellant
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR Defendant occupied the suit property, as a tenant till the year 2005 i.e., the year of his demise. Thereafter, the Appellant Defendant became the tenant of the suit property. What is sought to be conveyed by the Appellant Defendant is that the grandfather and father of the Plaintiffs were tenants in the suit property and a mortgage deed was also drawn and executed in the year 1957 with respect to the same property. It is also the case of the Plaintiffs that the Appellant Defendant has inducted sub-tenants in the suit property.
42. A three-Judge Bench of this Court in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad reported in 1951 SCC 136 : AIR 1951 SC 177, has held that a party is entitled to take alternative pleas in support of its case. Where alternative pleas arose to some extent from the admitted position of the defendant, such plea is not impermissible merely because it is inconsistent with the other plea. It held that a plaintiff may rely upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or more inconsistent sets of allegations claiming relief therein in the alternative. It further observed that although, a Court should not grant relief to a plaintiff in a case in which there is no foundation in a pleading on which the other side was not called upon or had opportunity to meet yet when the alternative case which, the plaintiff could have made was not only admitted by defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes.
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43. The view that a plaintiff is entitled to plead even inconsistent pleas while seeking alternative reliefs was reiterated by this Court in G. Nagamma v. Siromanamma reported in (1996) 2 SCC 25. In that case, a suit for specific performance of an agreement of re-conveyance was filed by the appellants. Later, an application for amendment of the plaint was sought stating that the transactions of execution of sale deed and obtaining a document for re-conveyance came to be a single transaction, i.e., it was a mortgage by conditional sale. So, alternatively plaintiff sought relief to redeem the mortgage. The trial court and the High Court rejected the same on the ground that the suit was filed for specific performance and that the amendment would change the nature of the suit as well as the cause of action. But this Court reversed the said decision and held that since the plaintiff therein was seeking alternative reliefs, he is entitled to plead even inconsistent pleas and that the amendment of the plaint would neither change the cause of action nor would affect the relief.
44. In Praful Manohar Rele v. Krishnabai Narayan Ghosalkar reported in (2014) 11 SCC 316, this Court followed the decision in Firm Sriniwas Ram Kumar (supra) and reiterated the principle that alternative and inconsistent pleas can be taken by a plaintiff. In that case, the plaintiff therein had alleged that the defendant therein and his legal representatives were occupying the suit premises as gratuitous licensees and upon termination of such licence, the plaintiff was entitled to a decree for possession. The trial court found that defendants were tenants and not licensees as alleged by the plaintiff. The 1st Appellate Court recorded a finding to
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR the contrary, held that the defendants were let into the suit property by plaintiff on humanitarian grounds and as gratuitous licensees and the license was validly terminated by plaintiff. It thus, negatived the defence of the defendants that they were tenants. In the plaint itself, the plaintiff therein had taken an alternative plea that he was entitled to vacant possession of the premises on the ground of bona fide personal need, nuisance, annoyance and damage allegedly caused to the premises and to the adjoining garden land belonging to him by the defendants. This Court held that the alternative plea of plaintiff and the defence set up by defendants was no different from each other. The Court held that it was open to the plaintiff not only to take a plea of license but also to alternatively plead tenancy in support of his plea for relief of recovery of possession. The Court held that defendants therein had specifically admitted that the property belongs to plaintiff and that they were in occupation thereof as tenants, and an issue was also framed whether defendants were in occupation as license or as tenants, and defendants had full opportunity to prove their respective cases. So, the defendants cannot be said to have been taken by surprise by the alternative case pleaded by plaintiff nor could any injustice would result to them from the alternative plea being allowed and tried by the Court. It observed that even if the alternative plea had not been allowed to be raised in the suit filed by appellant, he would have been certainly entitled to raise that plea and seek eviction in a separate suit filed on the very same grounds.
45. In Revajeetu Builders (supra), cited by the learned counsel for the Appellant, a two-Judge Bench of
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR this Court had an occasion to deal with Order 6 Rule 17 CPC In that case, the judgment of this Court in Usha Balashaheb Swami v. Kiran Appaso Swami reported in (2007) 5 SCC 602, was followed. It referred to the judgment in Ganesh Trading Co. v. Moji Ram reported in (1978) 2 SCC 91, wherein at para 50, this Court observed that if a plaintiff seeks to alter the cause of action itself and introduces it indirectly through amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it, if it amounts to depriving the party, against which a suit is pending, of any right which may have accrued in its favour due to lapse of time.
46. In our considered opinion, the aforesaid observations also do not come to the aid of the Appellant herein, inasmuch as, even in the judgment in Ganesh Trading Co. (supra), it had not referred to the three- Judge Bench judgment of this Court in Firm Sriniwas Ram Kumar (supra).
47. In the event, if the pleas sought to be introduced by plaintiff by way of an amendment is also the plea, which the defendant has set up in his written statement and such a plea of the plaintiff is an alternative plea, even though it is inconsistent with the original plea, since there is no prejudice caused to the defendant, the Court is not precluded from allowing the amendment.
48. At this stage, we may refer to rely upon the decision of this Court in the case of State of Madhya Pradesh v. Union of India reported in (2011) 12 SCC 268.
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR We quote the relevant observations as contained in para 8 of the judgment:--
"8. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
(Emphasis supplied)
21. If the application in IA No.1/2025 is examined bearing in mind the principles enunciated in the aforesaid judgments, it becomes clear that the proposed amendment would neither fundamentally change the nature or character of the suit or its cause of action; nor this proposed amendment be said to be barred by limitation or have the effect of taking away a right having stood vested in the respondents-defendant by lapse of time. So also the proposed amendment would not have the effect of giving rise to any fresh claim that would cause detriment to the defendants. At any rate, all defences available to the
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR respondents on all aspects of the matter including the proposed amendment can be adequately safeguarded by holding that the proposed amendment shall not relate back to the date of the suit, but shall be recognized/recokned only from the date of the application and all questions in relation to the proposed amendment including the plea of limitation would have to be reconsidered in accordance with law by leaving all such contentions open. It is needless to state that the merits/demerits of the proposed amendment can be controverted by the respondents-defendants by filing an additional written statement to the amended plaint.
22. In view of the aforesaid facts and circumstances, we are of the considered opinion that IA No.1/2025 filed by the appellant-plaintiff under Order VI Rule 17 CPC deserves to be allowed and accordingly the same is hereby allowed.
23. After having allowed IA No.1/2025 and permitting the appellant-plaintiff to amend the plaint, the next aspect that will arise for consideration is the procedure
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR to be followed by this Court after permitting such amendment. In this context, it is pertinent to note that as stated supra, one of the reasons for rejecting the claim of the appellant based on exhibit P34 as assigned by the trial Court was that there was inadequate pleadings in this regard. However, having regard to the allowing of IA No.1/2025 and permitting the appellant-plaintiff to incorporate necessary pleadings in relation to exhibit P.34 , it is just and appropriate to provide an opportunity to the respondents-defendants to file their additional written statement to the amended plaint and also permit all parties to adduce additional oral and documentary evidence in support of their respective claims and for that purpose, it would be just and expedient to set aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law as expeditiously as possible by leaving/keeping open all contentions to be decided by the trial Court.
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR
24. As stated earlier, since the proposed amendment has been allowed and the parties are permitted to file additional pleadings, it would be appropriate to permit the parties to adduce additional oral and documentary evidence in support of their respective claims by setting aside the impugned judgment and decree and remitting the matter back to the trial Court for reconsideration afresh in accordance with law.
25. Under these circumstances, we are of the considered opinion that the impugned judgment and decree passed by the trial Court deserves to be set aside and the matter is remitted back to the trial Court for reconsideration afresh in accordance with law. Point Nos.(i) and (ii) are accordingly answered in favour of the appellant.
26. Hence, the following :
ORDER
i) Appeal is hereby allowed.
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NC: 2025:KHC-D:12371-DB RFA No. 100003 of 2022 HC-KAR
ii) IA No.1/2025 filed by the appellant-
plaintiff under Order VI Rule 17 CPC is hereby allowed subject to the condition that the proposed amendment shall not relate back from the date of the suit but shall be reckoned/considered from 18.08.2025 on which date the application IA No.1/2025 is filed by the appellant-plaintiff;
iii) The matter is remitted back to the trial Court for reconsideration afresh in accordance with law.
iv) The parties are directed to appear before the trial Court on 15.10.2025 without awaiting further notice from the trial Court.
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v) The appellant shall carry out
amendment and file amended plaint on
15.10.2015.
vi) Liberty is reserved in favour of
respondent-defendant to file additional written statement to the amended plaint and urge all contentions including limitation etc.,
vii) Upon completion of pleadings, the trial Court shall proceed further and provide sufficient and reasonable opportunity to all the parties to adduce additional oral and documentary evidence and dispose of the suit in accordance with law as expeditiously as possible.
viii) The trial Court is directed to dispose of the suit and the parties shall co-
operate with the trial Court for
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RFA No. 100003 of 2022
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expeditious disposal of the suit and the trial Court shall dispose of the suit as expeditiously as possible and having regard to the long pendency of the suit and the age of the parties, the trial Court is directed to dispose of the suit within a period of 6 months from 15.10.2025.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE KMS-Upto para 9 HMB- Para 10 to end Ct:vh List No.: 1 Sl No.: 57