Karnataka High Court
Smt. Nagarathna vs Sri Kamakshi Prasanna on 25 September, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
WRIT PETITION NO.25332 OF 2022 (GM-CPC)
BETWEEN:
1. SMT. NAGARATHNA
AGED 68 YEARS
SINCE DECEASED BY HER LR'S.
a) SMT. MAHADEVI
D/O LATE POOJARI PURUSHOTHAM S.R.
W/O VIJAYA
AGED ABOUT 46 YEARS.
b) SMT. PUSHPA
D/O LATE POOJARI PURUSHOTHAM S.R.
W/O REVANNA
AGED ABOUT 45 YEARS.
c) SMT. ANITHA
D/O LATE POOJARI PURUSHOTHAM S.R.
W/O GANASHYAM
AGED ABOUT 44 YERS.
d) RANGANATH S.P.
D/O LATE POOJARI PURUSHOTHAM S.R.
AGED ABOUT 42 YEARS.
e) PRASANTH S.P.
D/O LATE POOJARI PURUSHOTHAM S.R.
AGED ABOUT 39 YEARS.
ALL ARE R/AT AND AVAILABLE AT
HOUSE SITUATED
BESIDE SRI. DODDAMMA JALA
DURGAMMA TEMPLE
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HOSAMANE EXTENSTION
SHIMOGA - 577201.
...PETITIONERS
(BY SRI. MAHABALESHWARA RAO K.N. ADVOCATE)
AND:
1 . SRI. KAMAKSHI PRASANNA
SRI DODDAMMA JALA DURGAMMA
DEVALAYA SAMITHI
REP. BY ITS GENERAL SECRETARY
MR. SHI. DU. SOMASHEKAR
C/O LATE S.R. DURGAPPA
AGED ABOUT 66 YEARS
BANASHANKARI EXTENSION
(NOW CALLED HOSMANE EXTENSION)
SHIMOGA PIN CODE 577201.
2 . MR. S. MUKUNDA
S/O LATE SNGAPPA .S
AGED 64 YEARS
R/O SRI KAMAKSHI PRASANNA
SRI DODDAMMA JALA DURGAMMA
DEVALAYA SAMITHI
R/O. GANDHI NAGAR
SHIMOGA - 577201.
...RESPONDENTS
(BY SRI. VIJAYAKUMAR R, ADVOCATE FOR R1 V/O/DTD:14.02.2023 NOTICE IN R/O R2 IS D/W) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 19.11.2022 ANNEXURE G, PASSED ON I.A.NO. 12 FILED UNDER ORDER VI RULE 17 OF CODE OF CIVIL PROCEDURE IN O.S NO.59/2021 ON THE FILE OF PRINCIPAL SENIOR JUDGE AND CJM SHIMOGA AND CONSEQUENTLY ALLOW THE APPLICATION FOR AMENDMENT FILED BY THE PETITIONER UNDER ORDER VI RULE 17 OF CODE OF CIVIL PROCEDURE PRODUCED AS ANNEXURE- C & ETC.
-3-THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This Writ Petition has been filed seeking to set aside the order dated 19.11.2022 on I.A. No.12 under Order VI Rule 17 read with Section 151 of CPC in O.S. No.59/2021 on the file of Principle Senior Civil Judge and CJM at Shimoga.
2. The Petitioner herein is the defendant no.2 before the Trial Court and since dead, petitioners 1a and 1b are the LRs of the petitioner. Respondent No. 1 herein, is the plaintiff and Respondent no-2 is the defendant no.1 before the trial court.
3. The facts of the case are as follows:
The petitioner's family, from more than three generations covering more than 80-100 years, has been performing pooja and other related works of "SRI -4- KAMAKSHI PRASANNA" Sri Doddamma Jala Durgamma Devalaya. The petitioner and her family members were residing in a house constructed more than 50-60 years back situated near the temple. After the death of the husband of the petitioner, her two children were performing pooja and other pooja works of the temple. Therefore, the earlier committee of the temple has taken decision to gift the property in which they were residing. Accordingly, Gift Deed has been executed in favour of the petitioner. Subsequently, the petitioner has demolished the house and commenced the construction of a new house by availing a loan from the bank. This is when the Plaintiff filed the O.S.No.59/2021 against the Respondent No.2 for cancellation of Gift Deed dated 01.03.2018.
The petitioner after filing written statement came to know that the property which was the subject matter of the registered Gift Deed dated 01.03.2018 did not belong to the plaintiff temple. The property which is in possession and enjoyment of the petitioner is situated on the southern side of the suit schedule property. The entire suit -5- schedule property is vacant and poojari house in which petitioner's family was residing was not part and parcel of the suit schedule property.
This is when the petitioner filed the application for amendment of written statement. The Trial Court after hearing both the sides, the Trial Court dismissed the application for amendment by an order dated 19.11.2022. Aggrieved by the same, this writ petition has been filed.
4. Heard Counsel for the petitioner and Counsel for Respondent No.1. Notice to Respondent No.2 has been dispensed with.
5. The Learned Counsel for the petitioner would contend that the trial court failed to note the fact that by allowing the amendment, nature of the suit does not get altered nor injustice will be caused to the plaintiff. It was further contended that the prayer of the petitioner by way of amendment of written statement is to contend that her house property is not within the suit schedule property and the property is intact and still available as vacant -6- property. The property of the petitioner is situated on the southern side of the suit schedule property, which the petitioner came to know only after filing of written statement and that's when the petitioner wanted to incorporate the said fact and filed the application for the amendment of the plaint.
6. It was also contended that the suit schedule property is not within the suit schedule property. The property of the plaintiff is very much available and property covered under the gift deed is not part of the suit schedule property and fact is that the suit schedule property is altogether a separate property from the house property belonging to the petitioner.
7. It was further contended that Trial Court has failed to note that in the matter of amendment of written statement approach of the courts is normally liberal.
Allowing the application would have not caused any prejudice to the plaintiff in proving his claim.
-7-8. By way of filing the written arguments, it was contended by the learned counsel for the petitioner that the area known as Plot-B measuring 50+66/2 x 47 feet granted to temple which is situated between the temple and the gifted property which is poojari House. The property measuring 50+66/2 x 47 feet is intact and committee of the temple under the impression that Poojari House is situated within its land has executed Gift Deed which the defendants came to know only after filing of the suit. It was further contended that the boundaries of the Gift Deed also shows that on the southern side temple land.
9. It was also contended that the Trial Court has not at all considered the fact that the proposed amendment of written statement is required to decide the controversy between the parties. The Counsel for the petitioner relies on the following Judgments :
Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, (2021) 20 SCC 210 : 2021 SCC OnLine SC 902 at page 226
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 -8- the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order 6 Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced. In the present case, as observed hereinabove, the factum of actual marriage on 14-12- 2006 came to the knowledge of the appellant wife when the marriage certificate was produced during the cross-examination of the respondent husband and immediately thereafter the application (Ext. 281) for amendment was made.
Baldev Singh v. Manohar Singh, (2006) 6 SCC 498 : 2006 SCC OnLine SC 799 at page 504
15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the trial court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the trial court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not -9- necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
Usha Balashaheb Swami v. Kiran Appaso Swami, (2007) 5 SCC 602 : 2007 SCC OnLine SC 531 page 608
18. It is now well settled by various decisions of this Court as well as those by the High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. In this connection, the observation of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung [(1920-21) 48 IA 214 : AIR 1922 PC 249] may be taken note of. The Privy Council observed: (IA pp. 216-17) "All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to
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be substituted for another, nor to change, by means of amendment, the subject-
matter of the suit."
Sushil Kumar Jain v. Manoj Kumar, (2009) 14 SCC 38 : (2009) 5 SCC (Civ) 289 : 2009 SCC OnLine SC 987 at page 41
14. It is equally well settled that (SCC p. 609, para 22) in the case of an amendment of a written statement, "the courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed".
LIC v. Sanjeev Builders (P) Ltd., (2022) 16 SCC 1 : 2022 SCC OnLine SC 1128 at page 35 70.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order 6 Rule 17 CPC.
10. Learned counsel for the respondents has relied upon the following Judgments:
Union of India v. Raghubir Singh, (1989) 2 SCC 754 : (1989) 178 ITR 548 : (1989) 74 STC 313 : (1989) 66 COMP CAS 466 : 1989 SCC OnLine SC 36 at page 766
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8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.
9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.
Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320 : 1976 SCC OnLine SC 339 at page 321
6. The defendants-appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement. The proposed amendments were for deletion of paras 25 and 26 and for substitution of two new paras 25 and
26. The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a
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mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants. The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiff's capacity as a purchaser. The defendants also alleged that the plaintiff throughout acted as an agent of the defendants. In para 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement, the plaintiff has no locus standi to file the suit.
7. The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court is that the defendants wanted to resile from admissions made in para 25 of the written statement. The trial court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law". The trial court held the application for amendment to be not bona fide.
8. The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.
Revajeetu Builders & Developers v.
Narayanaswamy & Sons, (2009) 10 SCC 84 :
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(2009) 4 SCC (Civ) 37 : 2009 SCC OnLine SC 1709 at page 93
33. In a recently published unique, unusual and extremely informative book Justice, Courts and Delays, the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a civil lawyer observed that 80% applications under Rule 17 of Order 6 are filed with the sole objective of delaying the proceedings, whereas 15% applications are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (may be even less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases.
Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays and the additional costs which had to be incurred by the victim of the amendment. The court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs.
35. The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the
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real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases.
39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice (see Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] and Arundhati Mishra v. Ram Charitra Pandey [(1994) 2 SCC 29] ).
Factors to be taken into consideration while dealing with applications for amendments
63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
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(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300 : (2012) 1 SCC (Civ) 801 : 2012 SCC OnLine SC 52 at page 306
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.
21. In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but
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usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
11. It can be observed from the impugned order that there is an admission in the written statement that the suit schedule property measuring (50+66)/2x47 was allotted by the government and transfer in favour of plaintiff though CMC Shivamogga through registered sale deed dated 30.03.1974 for upset price of Rs.400/- and there is admission regarding grant and transfer of site No.A to D in favour of the plaintiff.
12. It can be further observed from the impugned order that the trial Court has found that the pleadings of the defendant no.2 shows no contention regarding the fact that construction activities taken by the defendant No.2 is not in the suit schedule property and Trial Court has further found that the portion measuring 30x50 which is
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situated on the northern side of the suit schedule property measuring 50+66/2x47.
13. The trail court has come to a conclusion that proposed amendment sought for by the defendant takes away the admission in the written statement to the fact about residing in the suit schedule property and observed that the proposed amendment is insertion of complete new facts as well as taking away of the admissions. Ultimately, the trial Court has rejected the application.
14. On hearing the submissions of the learned counsel for the petitioner and respondents and also relying on the Judgments filed by both the counsels, on perusal of the material on record and on perusal of the impugned order of the trial Court, it is observed that whether the trial Court has considered the fact that the proposed amendment of written statement is required to decide the controversies between the parties and the same will be put to any hardship or injury if the amendment is allowed as the land which the temple claims is in tact?
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15. In view of the above discussions, I find that the trial Court failed to consider the above issue properly.
Further, in view of the above settled principles of law and as per the provision under Order VI Rule 17 of CPC, 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.
Therefore, if some facts have come to the knowledge subsequently and subseqent to the commencement of the trial, may be during the course of the trial and it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on fair reading of Order VI Rule 17 of CPC, such an application for amendment can be allowed even after the trial has commenced. In the present case, as observed hereinabove with regard to the nature of the suit will not change in any manner and no injustice is caused to the plaintiff and also not take away the admission made by the defendant in the written statement, i.e., with regard to the
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suit schedule property is concerned whether the suit schedule property of the temple property or outside of the temple property on it and not with regard to the title of the suit property. In view of the same, I am of the view that the trial Court erred in rejecting the application for amendment of written statement is allowed.
16. The Writ Petition is allowed with the following observations:
a) The defendant/petitioner is directed to file amended written statement within a period of one month from the date of the production of this Order before the trial Court.
b) The plaintiff is permitted to raise his objections, if any, before the trial Court while trial is in progress.
c) The trial Court is directed to dispose of the suit within a period of one year from the date of receipt of this Order.
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(DR.K.MANMADHA RAO) JUDGE BNV Ct-MS