Karnataka High Court
Mr. A Fazeel Pasha vs Sri. M M Manjunath on 20 January, 2026
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2026:KHC:3054
WP No. 28828 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.28828 OF 2024 (GM-CPC)
BETWEEN:
MR.A.FAZEEL PASHA S/O LATE ABDULLA KHAN,
AGED ABOUT 56 YEARS,
RESIDING AT NO.28, 3RD MAIN ROAD,
SHAMPUR MAIN ROAD, CHIKKANNA LAYOUT,
BENGALURU-560 045.
...PETITIONER
(BY SRI. SAILESH S. KATAREY, ADVOCATE)
AND:
1. SRI. M. M. MANJUNATH
S/O LATE M. C. MRUTHYUNJAYA,
AGED ABOUT 54 YEARS,
2. SRI M. PRAKASH S/O LATE M. C. MRUTHYUNJAYA,
AGED ABOUT 51 YEARS,
BOTH RESIDING AT NO.85, 8TH MAIN
17TH CROSS, ISRO LAYOUT, BENGALURU-560078.
Digitally signed
by RENUKA 3. SMT.PARAVATHAMMA, W/O LATE M.C.MRUTHYUNJAYA,
AGED ABOUT 76 YEARS,
Location: HIGH
COURT OF 4. SMT.DAKSHAYANI D/O LATE M. C. MRUTHYUNJAYA,
KARNATAKA
AGED ABOUT 54 YEARS,
BOTH RESIDING AT NO.85, 14TH CROSS,
SANJAY NAGAR, BENGALURU-560080.
...RESPONDENTS
(BY SRI. R. B. SADASIVAPPA, ADVOCATE C/R1, R3 & R4;
V/O DATED 20.01.2026 NOTICE TO R2 IS D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LX. ADDL.CITY CIVIL AND SESSIONS JUDGE AT
BANGALORE (CCH.NO.61), ON I.A.NO.10 DATED 02.08.2024 IN
O.S.NO.5968/2017 VIDE ANNEXURE-A AND ETC.
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NC: 2026:KHC:3054
WP No. 28828 of 2024
HC-KAR
THIS PETITION COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
Heard Sri Sailesh S. Katarey, learned counsel for the petitioner and Sri R.B.Sadasivappa, learned counsel for caveator/respondent No.1.
2. Sri R.B.Sadasivappa, learned counsel also undertakes to file vakalath on behalf of respondent Nos.3 and 4. Respondent No.2 was not represented before the trial Court. Hence, notice to respondent No.2 is dispensed.
3. This petition is filed by the petitioner who was the plaintiff in the original suit in O.S.No.5968/2017 challenging the order dated 02.08.2024 passed by the LX Additional City Civil and Sessions Judge at Bengaluru, on I.A.No.10.
4. Parties to the proceedings shall be referred to as plaintiff and defendants.
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR
5. The plaintiff filed suit against the defendants for the following reliefs:
"1. Direct the defendants to HAND OVER VACANT POSSESSION of suit schedule property to the plaintiff as existed before date of illegal dispossession.
2. Be pleased to direct the defendants by way of mandatory injunction to register the suit schedule property in favour of plaintiff.
3. Further be pleased to direct the defendants to construct/put up the existed car garage which was existed at the time of illegal dispossession at their own cost.
4. Direct the defendants to pay loss of income of Rs.1,000/- per day from the date of the illegal dispossession i.e., 13-5-2015 and till the date of disposal of suit.
5. Grant costs of the suit.
6. Grant such other relief/s as this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice."
6. When the matter was at the stage of commencement of trial, the plaintiff filed an application in I.A.No.10 under Order VI Rule 17 of the Code of Civil Procedure to incorporate certain amendments. The proposed amendment that was sought reads as under: -4-
NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR "ADD PRAYER 1A. Pass a judgment and decree for specific performance in favor of the plaintiff by directing the defendants to execute a registered sale deed and on their failure to do so, direct the registry of this Hon'ble Court to execute sale deed in favor of the plaintiff and also deliver vacant physical possession of the suit schedule property."
7. This application filed by the plaintiff was seriously objected to by the defendants on the ground that the same is barred by the law of limitation. The suit was filed in the year 2017 and the application was filed in the year 2023, beyond a period of six years and therefore, the same is barred by the law of limitation.
8. On consideration of the application and on hearing the learned counsel for both parties, the learned trial Judge rejected the application filed by the plaintiff. Aggrieved by which the plaintiff is before this Court.
9. It is the vehement contention of learned counsel for the plaintiff that the impugned order passed by -5- NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR the trial Court is perverse, arbitrary, illegal and the same deserves to be set aside. Further, it is contended by the learned counsel that the trial Court has misconstrued the petitioner's possession from 28.04.1986 till his ejectment in 2015. It is also contended that over a period of thirty years petitioner was in possession of the scheduled property in part performance of the agreement of sale. Indeed, the question whether the agreement is proved or not is a question of fact and by depriving the petitioner to seek the option of specific performance, the learned trial Judge has virtually pre-decided the matter. It is also contended by learned counsel that the application for amendment was filed prior to commencement of trial and therefore, there was no impediment for carrying out the amendment. As the plaintiff is not making out a new case for the reason that he had already stated with regard to the agreement of sale having been executed way back on 28.04.1986 by M.C.Mruthyunjaya in favour of the plaintiff to sell the suit schedule property measuring 30 ft., east to -6- NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR west and 20ft., north to south, for a valuable sale consideration of Rs.72,000/-. It is further contended by the learned counsel for the plaintiff that the Hon'ble Apex Court in the case of Salem Advocate Bar Association, T.N., vs. Union of India [2005(6) SCC 344] as well as in the case of Vidyabai and others vs. Padmalatha and another [AIR 2009 SC 1433] has held that no application for amendment can be allowed after trial has commenced. However, in the present case on hand, it is contended that the application was filed by the plaintiff prior to the evidence being commenced. Hence, it is well within the proviso to Order VI Rule 17 of CPC. Therefore, amendment ought to have been allowed by the learned trial judge.
10. It is also contended by the learned counsel for the plaintiff that in the plaint he has clearly narrated the facts with regard to the plaintiff having purchased the suit schedule property by way of agreement of sale dated -7- NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR 28.04.1986 from late M.C.Mruthyunjaya and that the plaintiff was put in possession of the suit schedule property in part performance of the agreement of sale and late M.C.Mruthyunjaya had received a sum of Rs.12,000/- towards sale consideration and acknowledgement to that effect is also produced and the remaining amount was also received by the late M.C.Mruthyunjaya. What remained was only the execution of the sale deed in pursuance of the agreement of sale by getting all the required documents by the vendor late M.C.Mruthyunjaya. It is also contended that GPA was also executed coupled with interest and what remained was the registration of sale deed alone as entire sale consideration was paid to late M.C.Mruthyunjaya.
11. Learned counsel for the plaintiff also contends that prior to the filing of the application in I.A.No.10, defendant Nos.1, 3 and 4 had filed I.A.No.8 under Section 151 of CPC, where the defendants sought for dismissal of -8- NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR the present suit on the ground that the plaintiff who was a tenant had suffered the decree already and hence, the said decree cannot be executed. This application which was filed by the defendants came to be rejected by the trial Court and at paragraph No.11 while deciding the said application, the learned trial Judge has held as under:
"11. This suit is filed for handing over possession to plaintiff by defendants. Though no prayer for specific performance is sought for Pith and substance of the relief claimed is for specific performance, contention of the plaintiff is that agreement to sell in respect of suit schedule property was entered into between him and Sri. M.C. Mruthyunjaya, in the year 1986, in respect of property measuring East-West 30 feet, North to south 20 feet. According to plaintiff, in respect of other two adjacent portion, he was a tenant, eviction order was passed in SC No.800/2012 and 801/2012 in respect of only two portions. The suit schedule property in SC No.801/2012 and 800/2012 plays a major role and they need to be juxtaposed with the property which is subject matter of the alleged agreement to sell dated 28.4.1986. At the time of execution of delivery warrants, whether plaintiff was evicted from -9- NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR property which was not covered under said eviction order would be a issue in this suit. Undoubtedly, plaintiff has filed this suit after long lapse of 31 years. Limitation period for a suit for specific performance would start from the date plaintiff has knowledge of refusal by defendant to perform his part of contract."
12. Therefore, learned counsel for the plaintiff contends that on the earlier occasion the learned Judge had opined that the pith and substance of the relief claimed is for specific performance. Hence, the present application filed for amendment by the plaintiff would not change the nature of the suit as the sum and substance in the plaint averments and the pleadings denote that was an agreement of sale and the plaintiff was seeking the possession back from the defendants after having been illegally ousted from his possession in part performance of the agreement of sale dated 28.04.1986. Under the circumstances, he seeks to allow the petition and consequently, to set aside the impugned order passed by the learned trial Judge.
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR
13. Per contra, Sri R.B.Sadasivappa, learned counsel appearing on behalf of the respondents/defendant Nos.1, 3 and 4 vehemently contends that the present application filed by the plaintiff is not maintainable and the same deserves to be dismissed out rightly, without even proceeding further, as the plaintiff by way of the amendment is seeking specific performance of contract and a direction to execute the sale deed in respect of the suit schedule property. It is further contended by learned counsel for the defendants that the suit for specific performance is time barred and the suit was filed in the year 2017. The agreement of sale alleged to be executed is of the date 28.04.1986. Though it is not admitted, but yet taking the date into consideration, the present application filed by the plaintiff seeking amendment is time barred and it is more than 37 years, which itself disentitles the plaintiff for seeking any amendment. Therefore, he seeks dismissal of the petition on the ground that the learned trial Judge has not committed any error or
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR illegality or perversity in passing the order of dismissal of the application rejecting the plea of the plaintiff for carrying out amendment.
14. It is also contended by learned counsel that the first prayer made by the plaintiff in his plaint is to hand over vacant possession of the suit schedule property to the plaintiff. The second prayer made was for a direction to the defendants by way of mandatory injunction to register the suit schedule property in favour of the plaintiff. It is further contended that the second prayer sought for is almost in the guise of a specific performance of the contract, though the date has not been specifically mentioned. Therefore, what the plaintiff wants by way of amendment is already sought for in the second prayer to the suit. Under the circumstances, the present application for amendment need not be considered or taken, for the simple reason that already such a prayer is made in the form of a mandatory injunction. On these grounds, he seeks dismissal of the petition.
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15. I have heard learned counsel for the petitioner and learned counsel for the respondents.
16. The point that arises for consideration is whether the impugned order passed by the learned trial Judge is illegal and whether it calls for interference.
17. It is not in dispute that the suit filed by the plaintiff is for handing over vacant possession of the suit schedule property to the plaintiff as it existed before the date of illegal dispossession and secondly, for mandatory injunction to direct the defendants to register the suit schedule property in favour of plaintiff and for another prayer sought is to direct the defendants to pay loss of income of Rs.1,000/- per day from the date of illegal dispossession which is 13.05.2015 and till the date of disposal of suit.
18. On a careful perusal of the plaint, it is seen that the plaintiff has taken the plea of the agreement of sale having been entered into by him with late
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR M.C.Mruthyunjaya on 28.04.1986 with regard to the suit schedule property for a valuable sale consideration of Rs.72,000/- measuring east to west 30 ft., north to south 20 ft.. The agreement of sale has already been produced along with the plaint. The plaintiff, in part performance of the agreement of sale, has paid entire sale consideration amount in a phased manner, in all Rs.72,000/- to late M.C.Mruthyunjaya. It is also contended that in part performance of the agreement of sale dated 28.04.1986, the plaintiff was put into possession of the suit schedule property. So what was left was only with regard to the execution and registration of the sale deed in favour of the plaintiff in terms of the agreement of sale after securing necessary documents. It is also contended in the pleadings of the plaint that along with the agreement of sale, plaintiff had executed a notorized general power of attorney coupled with interest which also proves the fact that what was required to be done by the vendor of the plaintiff was only to execute the registered sale deed in
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR favour of the plaintiff. No doubt, the plaintiff has also pleaded that during the course of the proceedings in the co-ordinate petitions filed by the defendants in SC No.800/2012 and 801/2012, the plaintiff was evicted/dispossessed from the suit schedule property on 13.05.2015. But whether this aspect has been taken note of by the plaintiff or pleaded in any other proceedings apart from the pleadings here is to be considered in the suit while passing the main order by the trial Judge.
19. Now the question that arises is whether the amendment that is sought is required to be incorporated in the suit proceedings. It is seen that the application that is filed by the plaintiff is merely to incorporate the prayer to pass a judgment and decree for specific performance in favour of the plaintiff by directing the defendants to execute a registered sale deed and on failure to do so, to direct the registry of the court to execute the sale deed in favour of the plaintiff and to deliver vacant possession of the suit schedule property. If the same is juxtaposed to
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR the prayer already made by the plaintiff in the plaint, the first prayer was to direct the defendants to hand over vacant possession of the suit schedule property to the plaintiff as it existed before the date of illegal dispossession. The second prayer was to direct the defendants by way of mandatory injunction to register the suit schedule property in favour of the plaintiff. The fourth prayer was to direct the defendants to pay loss of income of Rs.1,000/- per day from the date of illegal dispossession i.e.,13.05.2015 till the date of disposal of the suit. On a careful perusal of these three prayers along with the other, it is seen that what the plaintiff is now seeking to incorporate by way of amendment is already incorporated in the pleadings and so also in the prayer of the plaint. Therefore, merely by not stating the words judgment and decree for specific performance, it could not take away the sum and substance or the pith and substance of the pleadings and the prayer made by the plaintiff. It was also relevant to note that the trial Court
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR itself in its order passed on I.A.No.8 filed by the defendants Nos.1, 3 and 4 has in fact stated that though no prayer for specific performance is sought for, pith and substance of the relief claimed is for specific performance. This being the case, when all averments and pleadings are already made in the plaint including the prayer, the question of allowing the plaintiff to carry out amendment to incorporate the words 'specific performance of the contract' may not be required in my humble opinion.
20. It is also relevant to mention that learned counsel for the plaintiff during the course of arguments submits that he has already led his evidence and the matter is now set down for arguments and that he would not press for producing any further evidence if the amendment is to be allowed. Therefore, when the plaintiff is not interested in leading any further evidence and all that is sought for in the amendment is already incorporated in the plaint averments and the prayer, merely for the asking of specific words not being
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NC: 2026:KHC:3054 WP No. 28828 of 2024 HC-KAR incorporated need not be the reason to allow the application for amendment. It is open to the trial Judge who has already opined in the interim order that the pith and substance of the plaint averments is for specific performance of the contract. When that being so, the trial Court shall deal with the suit as good as the suit is filed for a specific performance of the contract. So also for the reason that the second prayer made is for a mandatory injunction to register the suit schedule property in favour of the plaintiff.
21. It is relevant to mention at this stage that this Court has not delved into the merits of the matter with regard to the agreement of sale or the same being barred by time or for that matter the validity and genuinity of the same, it is open to the learned trial judge to deal with it in accordance with law based on the oral and documentary materials.
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22. Under the circumstances, having not found any good ground or cogent reason to allow the application, I pass the following:
ORDER i. In view of the observations made herein above, petition is disposed.
ii The suit shall be treated as one for specific performance.
iii. Learned Trial Judge is requested to dispose of the suit within one month from the date of receipt of copy of the order, as nothing further remains except for addressing arguments.
Sd/-
(PRADEEP SINGH YERUR) JUDGE NB/VNR List No.: 19 Sl No.: 1 CT:SI