[Cites 3, Cited by 0]

Karnataka High Court

Sri. Mahendra Baid vs Smt. H. S. Prathima Vijay Kumar on 9 December, 2025

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

                                            -1-
                                                      NC: 2025:KHC:52047
                                                    WP No. 14486 of 2020


               HC-KAR



                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 9TH DAY OF DECEMBER, 2025

                                           BEFORE

                     THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

                        WRIT PETITION NO. 14486 OF 2020 (GM-CPC)

              BETWEEN:

              1.   SRI MAHENDRA BAID
                   S/O SRI MOHANLAL BAID
                   AGED ABOUT 52 YEARS.

              2.   SMT. MEENA BAID
                   W/O SRI MAHENDRA BAID
                   AGED ABOUT 46 YEARS.

              3.   SRI DHARMENDRA BAID
                   S/O SRI MOHANLAL BAID
                   AGED ABOUT 46 YEARS.

              4.   SMT. BASU SHREE BIAD
                   W/O SRI DHARMENDRA BAID
                   AGED ABOUT 40 YEARS.
                   PETITIONER NO.1 TO 4 ARE
                   RESIDENTS NO.50, 8TH MAIN ROAD
Digitally
signed by          KALYAN CO OPERATIVE SOCIETY
NANDINI M S        RPC LAYOUT, VIJAYANAGAR
Location:
HIGH COURT         BENGALURU - 560 040.
OF                                                      ...PETITIONERS
KARNATAKA
              (BY SRI P.D. SURANA, ADV.)

              AND:

                   SMT. H.S. PRATHIMA VIJAY KUMAR
                   W/O SRI C.P. VIJAY KUMAR
                   MAJOR
                   RESIDING AT NO.43, 44, 45
                   1ST MAIN, PRASHANTHNAGAR
                   EXTENSION, BSK 5TH STAGE
                   ISRO LAYOUT
                   BENGALURU -560 078.
                                                        ...RESPONDENT
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                                              NC: 2025:KHC:52047
                                          WP No. 14486 of 2020


HC-KAR



(BY SRI SRINATHA P, ADV.)

    THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.
23.03.2020 MADE ON I.A. NO.III/2019 IN O.S.NO.25083/2014
PENDING ON THE FILE OF XXVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE (CCH NO.29), THE SAID ORDER
IS AVAILABLE IN CERTIFIED COPY OF ORDER SHEET PRODUCED
AT ANNX-E.

    THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B
GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:     HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

                         ORAL ORDER

1. Defendant nos.1 to 4 are before this Court in this writ

petition filed under Article 227 of the Constitution of India, with

a prayer to set aside the order dated 12.03.2020 passed on

IA.no.3/2019 in O.S.No.25083/2014 by the Court of XXVIII

Addl. City Civil & Sessions Judge, Bengaluru.

2. Heard the learned Counsel for the parties.

3. O.S.No.25083/2014 was filed by the respondent herein

seeking the relief of specific performance of the agreement of

sale dated 13.09.2008 by receiving the balance sale

consideration of Rs.12,47,623/- only. An alternative relief of

directing the officers of the Court to execute the sale deed

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pursuant to the aforesaid sale agreement in favour of the

plaintiff was also sought for in the said suit.

4. The contesting defendants have entered appearance and

filed their written statement opposing the suit claim. When the

suit was at the stage of recording further cross-examination of

PW-1, on 27.08.2019 IA.no.3 was filed on behalf of the plaintiff

under Order VI Rule 17 CPC with a prayer to amend the plaint.

5. The said application was allowed by the Trial Court on

26.09.2019 and as against the said order, the defendants had

filed W.P.No.52981/2019 before this Court which was allowed

on 16.01.2020 and the matter was remitted to the Trial Court

to consider IA.no.3/2019 afresh. The Trial Court, thereafter,

has passed the order impugned allowing IA.no.3/2019 and

being aggrieved by the same, the defendants are before this

Court.

6. Learned Counsel for the petitioners having reiterated the

grounds urged in the petition, submits that the plaintiff intends

to withdraw the admissions in the plaint as well as in her

deposition as PW-1 by amending the plaint. The Trial Court has

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failed to appreciate this aspect of the matter. Application

seeking amendment of plaint is filed after PW-1 was extensively

cross-examined on the admissions made by her regarding

payment of money towards advance sale consideration under

the agreement of sale, of which specific performance is sought.

Since the amendment application is filed after the trial had

commenced, the same is hit by the proviso to Order VI Rule 17

CPC. In support of his arguments, he has placed reliance on the

judgments of the Hon'ble Supreme Court in the case of

CHANDER KANTA BANSAL VS RAJINDER SINGH ANAND -

(2008)5 SCC 117, VIDYABAI & ORS. VS PADMALATHA & ANR.

- AIR 2009 SC 1433, JODHRAJ VS MRS. MAYA M.SHAH &

OTHERS (WP.No.24682/2012 disposed of on 11.03.2013).

7. On the other hand, learned Counsel for the respondent

has argued in support of the order impugned.

8. Perusal of the averments made in the plaint would go to

show that plaintiff has pleaded that the total sale consideration

of the suit schedule property as agreed under the agreement

for sale dated 13.09.2008 is Rs.1,69,83,914/- and out of the

said amount, plaintiff has paid totally a sum of

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Rs.1,57,39,877/- to the defendants on various dates as

described in the body of the plaint, and balance sale

consideration payable was only Rs.12,47,623/-. Even in the

affidavit filed in lieu of examination-in-chief, the averments

made in the plaint about the total consideration and the

amount paid to the defendants by the plaintiff as averred in the

plaint has been reiterated.

9. PW-1 was extensively cross-examined with respect to the

aforesaid aspects of the matter by the defendants and at the

stage of further cross-examination of PW-1, IA.no.3/2019 was

filed under Order VI Rule 17 CPC with a prayer to delete certain

sentences in paragraph no.9 and to incorporate the proposed

paragraphs as found in the amendment application.

10. A reading of the proposed amendment along with the

averments found in the plaint would go to show that the

plaintiff intends to withdraw the statements made by her

regarding the alleged payments made to the defendants under

the agreement in question, and in its place, incorporate a

totally new paragraph wherein the particulars of payments

made towards advance sale consideration has been described.

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The date and amount paid as stated in the proposed

paragraphs is totally different compared to the statements

found in the plaint with regard to the alleged payment of

advance sale consideration to the defendants.

11. By incorporating the proposed amendment, it appears

that an attempt is made by the plaintiff to wriggle out of the

statements earlier made by her in the plaint as well as during

the course of her deposition as PW-1 and the same cannot be

permitted.

12. The application was belatedly filed during the course of

trial. The Hon'ble Supreme Court in Chander Kanta Bansal's

case supra, at paragraphs 16 to 18, has observed as under:

"16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to

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satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.

17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.

18. As rightly referred to by the High Court in Union of India v. Pramod Gupta [(2005) 12 SCC 1] this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings."

13. In Jodhraj's case supra, the coordinate bench of this

Court in almost identical circumstances, at paragraph no.19,

has observed as under:

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"19. In the affidavit, it is not stated that defendants had exercised due diligence or made efforts to verify their pleadings before commencement of trial.

It is only after the case was set down for cross- examination of PW1 and learned counsel for defendants was repeatedly taking adjournments and persuading defendants to settle the matter, defendants requested their previous counsel to return the file along with 'no- objection' to engage a new counsel. It is specifically stated that learned counsel for defendants had given 'no objection' and file was returned on 26.02.2012. Thereafter, file was examined by present counsel. The defendants were shocked to learn that antecedent facts regarding agreement of sale dated 12.03.2007, entered into between plaintiff and defendants in respect of suit schedule properties were not stated in the written statement. Thus, it is apparent on the face of record that defendants exercised so called due diligence after 26.02.2012, whereas trial had commenced on 02.09.2011.

14. The proposed amendment relates to the payments made

under the agreement for sale by the plaintiff to the defendants.

By the proposed amendment, the plaintiff intends to introduce

a totally new case when the suit was at the stage of further

cross-examination of PW-1. Due diligence was not at all proved

by the plaintiff. Under the circumstances, I am of the opinion

that the Trial Court was not justified in allowing IA.no.3/2019

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filed on behalf of the plaintiff. Therefore, the order impugned

cannot be sustained. Accordingly, the following order:

15. Writ petition is allowed. The impugned order dated