Karnataka High Court

Somareddi Shankarareddi Goulera vs Prabhu Channabasappa Shankrikoppa on 29 November, 2023

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                                            NC: 2023:KHC-D:13983
                                              WP No. 102590 of 2022




             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                 DATED THIS THE 29TH DAY OF NOVEMBER, 2023

                                    BEFORE

                       THE HON'BLE MR JUSTICE M.I.ARUN

                 WRIT PETITION NO. 102590 OF 2022 (GM-CPC)


            BETWEEN:

            SOMAREDDI SHANKARAREDDI GOULERA,
            AGE: 29 YEARS, OCC: AGRICULTURE,
            R/O: NAGAVI, TQ: DIST:GADAG,
            PIN CODE: 582103.

                                                       ...PETITIONER

            (BY SMT. SHIVALEELA ARAHUNASI, ADV. FOR
                SRI ARAVIND D. KULKARNI, ADVOCATE)


            AND:
GIRIJA A
BYAHATTI    1.   PRABHU CHANNABASAPPA SHANKRIKOPPA,
Digitally        AGE: 55 YEARS, OCC: AGRICULTURE,
signed by        R/O: NAREGAL, TQ: HANAGAL,
GIRIJA A
BYAHATTI         DIST: HAVERI-581148.

            2.   SHAKARAREDDI HANUMAREDDI GOULI,
                 AGE: 60 YEARS, OCC: AGRICULTURE,
                 R/O: KALVEYALLAPUR, TQ: HANAGAL,
                 DIST: HAVERI-581102.

            3.   ANANDAPPA VENKAPPA GWADALA,
                 AGE: 59 YEARS, OCC: AGRICULTURE,
                 R/O: NAREGAL, TQ: HANAGAL,
                 DIST: HAVERI-581148.
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                                     NC: 2023:KHC-D:13983
                                       WP No. 102590 of 2022




4.    NINGAPPA VAENKAPPA GWADALA,
      AGE: 55 YEARS, OCC: AGRICULTURE,
      R/O: NAREGAL, TQ: HANAGAL,
      DIST: HAVERI-581148.

                                                ...RESPONDENTS

(BY SRI MAHESH WODEYAR, ADVOCATE FOR R1;
    NOTICE TO R2 TO R4 IS SERVED & UNREPRESENTED)


       THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE

A WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING

IMPUGNED     ORDER     DATED   21.06.2022   PASSED   BY   THE

LEARNED 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE

AND SPECIAL JUDGE HAVERI, ON I.A. NO. 2/2021 FILED

UNDER ORDER 6 RULE 17 OF CIVIL PROCEDURE CODE IN R.A.

NO.    47/2018   BY   THE RESPONDENT     NO.1    HEREIN   VIDE

ANNEXURE-J CONSEQUENTLY DISMISS THE I.A. NO. 2/2021

FILED BY THE PLAINTIFF/ RESPONDENT NO.1.



       THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:
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                                    NC: 2023:KHC-D:13983
                                       WP No. 102590 of 2022




                            ORDER

Respondent No.1 filed O.S. No.223/2010 against the

petitioner herein and respondent Nos.2 to 4 with one of the

prayers being to direct the petitioner and respondent No.1 to

honour the agreement that he had entered into with them

regarding sale of a property by specifically enforcing the same.

The suit of the plaintiff was partly decreed. Against the said

judgment, R.A. No.47/2018 has been filed by respondent No.1

herein and the same is pending on the file of I Additional

District and Sessions Judge and Special Judge, Haveri. In the

said appeal proceedings, the respondent No.1 herein has filed

I.A. No.II under Order VI Rule 17 of CPC with a prayer to

amend the plaint, wherein he has sought to insert the pleadings

that the plaintiff was not aware as to the age of the 1st

defendant when the rights in the property was changed and

also at the time of execution of the sale agreement, the 2nd

defendant told the plaintiff that the 1st defendant had attained

majority in a believable manner and that the plaintiff had

believed that the 1st defendant had attained majority. The said

amendment application has been allowed by the Appellate

Court by its impugned order dated 21.06.2022. Aggrieved by

NC: 2023:KHC-D:13983

the same, the present writ petition is filed by defendant No.1 in

the original suit.

2. The case of the petitioner is that he was a minor at

the time of execution of the contract and the respondent No.1

(plaintiff) in his cross-examination has admitted that the

petitioner herein is the owner of the property and at the time of

the purchase / agreement, the petitioner looked as a minor and

at that time, the petitioner was about 16 to 17 years and his

father has told that the petitioner was a minor at the time of

the purchase. Now to overcome the said admission, the plaintiff

has sought to amend the plaint to the contrary and the same

should not be permitted.

3. Per contra, the advocate for respondent No.1

submits that the proposed amendment does not change the

nature of the suit and in the interest of justice, to decide the

real controversy, the same is required to be allowed and prays

for dismissal of the writ petition.

4. The question that arises for consideration is:

"Whether the amendment sought for by respondent No.1 could have been allowed by the First Appellate Court or not?"

5. Order VI Rule 17 of CPC reads as under:

NC: 2023:KHC-D:13983

"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, 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."

6. Order VI Rule 17 of CPC postulates amendment of

pleading at any stage of proceeding provided the Court comes

to a conclusion that inspite of due diligence, the party could not

have raised the matter before commencement of trial.

However, the Courts are liberal in allowing the application for

amendment provided, it does not cause injustice to the other

side and the said amendment is necessary for the purposes of

determining the real controversy between the parties. The

question as to when the amendments can be allowed came up

for consideration before the Hon'ble Supreme Court in Ganesh

Prasad vs. Rajeshwar Prasad and others reported in 2023

NC: 2023:KHC-D:13983

SCC OnLine SC 256. In paragraphs 37 and 38, the Supreme

Court has held as under:

"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."

7. In the instant case, one of the prayers made in the

plaint is for execution of a sale deed pursuant to a contract

entered into between respondent No.1 and the petitioner and

other respondents herein. In the cross-examination,

respondent No.1 has admitted that the petitioner was a minor

NC: 2023:KHC-D:13983

at the time of the contract and he was aware as to it. This

admission goes to the root of the matter. Now by way of

amendment, respondent No.1 has sought to plead otherwise to

the effect that petitioner herein at the time of contract looked

like an adult and his father told him that he was an adult.

Allowing the said amendment, at the stage of appeal, will cause