Karnataka High Court

Sri. B.S. Keshava Iyengar vs Sri B.V. Karigowda on 8 January, 2025

                                         -1-
                                                      NC: 2025:KHC:618
                                                 WP No. 31383 of 2019




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 8TH DAY OF JANUARY, 2025

                                       BEFORE
             THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                 WRIT PETITION NO. 31383 OF 2019 (GM-CPC)
            BETWEEN:

            1.   SRI. B.S. KESHAVA IYENGAR
                 S/O LATE M.S.SHESADRI IYENGAR
                 AGED ABOUT 72 YERS
                 R/A BOOVANAHALLY VILLAGE
                 HASSAN TALUK-573201

            2.   SRI B.K.DEEPAK
                 S/O SRI B.S.KESHAVA IYENGAR
                 AGED ABOUT 40 YEARS
                 R/A BOOVANAHALLY VILLAGE
                 HASSAN TALUK-573 201

                                                         ...PETITIONERS
            (BY SRI. ABHINAV RAMANAND A., ADVOCATE)

            AND:
Digitally   1.   SRI B.V. KARIGOWDA
signed by
SUVARNA T        S/O VENKATEGOWDA
                 AGED ABOUT 72 YEARS
Location:
HIGH
COURT OF    2.   SRI CHIKKALINGEGOWDA
KARNATAKA        S/O BOMMEGOWDA
                 AGED ABOUT 79 YEARS

            3.   SRI VENUGOPAL A.
                 S/O PATEL ANNEGOWDA
                 AGED ABOUT 73 YEARS

            4.   SRI.PADMARAJ
                 S/O PUTTEGOWDA
                 AGED ABOUT 63 YEARS
                                -2-
                                               NC: 2025:KHC:618
                                         WP No. 31383 of 2019




5.   SRI B.K.LAKSHMANA
     S/O KARIYAIAH
     AGED ABOUT 46 YEARS

6.   SRI B.V.THIMMEGOWDA
     S/O VENKATEGOWDA
     AGED ABOUT 56 YEARS

     RESPONDENT 1 TO 6 ARE
     R/A BOOVANAHALLY VILLAGE
     KASABA HOBLI
     HASSAN-573 201
                                             ...RESPONDENTS
(BY SRI.GIRISH B.BALADARE, ADVOCATE FOR R1, R3 TO R6
    R2 SERVED AND UNREPRESENTED)

      THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:
24.06.2019 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC AT HASSAN IN O.S.NO.18/2010 VIDE ANNEXURE-K TO THE
W.P. AND REJECT I.A.NO.23 DATED:08.04.2019 FILED BY
RESPONDENTS IN O.S.NO.18/2010 VIDE ANNEXURE-H TO THE W.P.
BY ALLOWING THE PRESENT PETITION.

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

CORAM:    HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                          ORAL ORDER

The present writ petition is filed aggrieved by the order

passed in I.A.No.23 in O.S.No.18/2010 dated 24.06.2019 by

the Additional Senior Civil Judge, Hassan, whereby the trial

Court had allowed the application filed by the defendants under

Order 6 Rule 17 of CPC.

2. The facts of the case are that the petitioner herein who

is the plaintiff had filed the suit seeking declaration that the

NC: 2025:KHC:618

plaintiffs are the absolute owners of plaint A schedule

properties (except Sy.No.74 and 244) and plaint "D" schedule

property and consequential relief of permanent injunction

restraining the defendants from interfering with the plaintiff's

peaceful possession and enjoyment of the properties. Earlier, in

the suit, the defendants had filed I.A.No.22 under Order 6 Rule

17 of CPC seeking permission to amend the written statement.

Through proposed amendment the defendants wanted to add a

paragraph that the property belongs to a public trust and as

such, the suit is not maintainable. That I.A. came to be

dismissed by the trial Court holding that the amendment is not

necessary to adjudicate the dispute between the parties at a

belated stage and it is necessary to consider the question of

law and the Court had framed an additional issue and dismissed

I.A.No.22. Thereafter, the suit itself came to be dismissed.

Aggrieved thereby, the plaintiffs had filed R.A.No.2/2018 and in

that, the defendants had filed cross appeal. The Appellate Court

by judgment and decree dated 03.07.2018 had allowed the

appeal filed by the plaintiffs and cross objections filed by the

defendants and set aside the order of the trial Court and

remanded the matter for fresh disposal, the Appellate Court

NC: 2025:KHC:618

had observed that the trial Court shall frame additional issue

and also afford the opportunity to both the parties to amend

their pleadings and to file rejoinder if any and also to lead

evidence. Considering the pendency of the case, the trial Court

was directed to dispose off the matter within ten months.

3. After the remand, the defendants once again filed an

application i.e., I.A.No.23 under Order 6 Rule 17 of CPC

seeking amendment of the written statement on the

maintainability of the suit in view of Section 92 of CPC which

came to be allowed by the trial Court by way of order

impugned. The trial Court while allowing the application

observed that no doubt, the doctrine of res-judicata is

applicable to interlocutory applications also but in the peculiar

facts of the present case, it is to be noted that the proposed

amendment sought for by the defendants is with respect to

maintainability of the suit filed by the plaintiff and it touches

the very jurisdiction of the Court to entertain the suit of the

plaintiff and such a point of law can be urged even at the time

of arguments without supporting pleadings. But the Appellate

Court in R.A.No.2/2018 has clearly reserved the liberty to both

sides to get their pleadings amended and file rejoinders, if any.

NC: 2025:KHC:618

Under such circumstances, the application filed by the

defendants cannot be said to be hit by doctrine of res-judicata

and the proposed amendment is very much essential for

effective disposal of the case and accordingly allowed the

application.

4. Learned counsel appearing for the petitioners submits

that once an application filed by the defendant under Order 6

Rule 17 of CPC is dismissed, he cannot re-agitate the very

same issue and file another application under the guise of the

remand order. He submits that the same is barred by res-

judicata. In this regard, learned counsel had relied on the

judgment of the Hon'ble Apex Court in case of

S.Ramachandra Rao Vs. S.Nagabhushana Rao and

Others1 and he had relied on another judgment of the Hon'ble

Apex Court in case of Vidyabai and Others Vs. Padmalatha

and Another2. Relying on these judgments, learned counsel

submits that after the commencement of trial without even an

averment that in spite of due diligence, these particular facts

could not be brought to the notice of the Court and the Court

had allowed the application. He submits that while passing the

2022 LiveLaw (SC) 861

(2009) 2 SCC 409

NC: 2025:KHC:618

order, the Court ought to have given reasons for allowing the

application. It is submitted that simply basing on an order

passed in the R.A., the Court had allowed application filed

under Order 6 Rule 17 of CPC which is contrary to the settled

law.

5. Learned counsel appearing for the respondents/

defendants submits that when the matter is remanded by the

Appellate Court, the Court had given liberty to all the parties to

amend their pleadings, if any and to file appropriate

applications and in the guise of the liberty given by the Court,

the question of res-judicata will not arise. As the property is a

public trust property, the suit is not maintainable and as the

issue goes to the root of the matter which is very much

essential for adjudicating the dispute between the parties, the

amendment has been allowed by the trial Court and there is no

illegality with the said order.

6. Having heard the learned counsels on either side,

perused the entire material on record. The application under

Order 6 Rule 17 of CPC was originally dismissed by the Court

and the suit was also dismissed. The Appellate Court had

remanded the matter and the defendants have again moved

NC: 2025:KHC:618

the same application which came to be allowed only on the

ground that liberty is given by the Appellate Court. This is a

suit of the year 2010. The case of the defendant even in the

written statement is that the property is a public trust property.

The trial Court had framed additional issue whether the

defendants prove that the Court has no subjective jurisdiction

to entertain the suit. By way of this amendment, again the

defendants want to amend the written statement stating that

the Court has no subjective jurisdiction to entertain the suit.

The additional issue that is framed, the amendment that is

sought are one and the same though it is worded in a different

manner. When there is an additional issue, there was no reason

for the defendants to file a petition seeking amendment and the

Court without any reason had allowed the petition.

7. When the Court allowed the application that was

questioned before this Court by way of this present writ petition

if such an amendment is ordered under law, no prejudice would

be caused to the plaintiffs and the contention of the learned

counsel for the petitioners/plaintiffs is that the defendants have

been filing these kinds of applications to protract the

proceedings. This Court is not able to understand and

NC: 2025:KHC:618

appreciate the submission of the counsel for the petitioners as

this writ petition is filed in the year 2019 and till 2025, the

same is pending before this Court. Even with the amended

written statement, if the case was heard by this time, the case

would have been taken to a logical conclusion. It is very

unfortunate that in the civil litigation, the parties for the

reasons best known to them are filing the cases just because a

remedy is available to the party. The fact remains is that the

Court while allowing an application under Order 6 Rule 17 of

CPC ought to have looked at several aspects, particularly, the

necessity for the amendment whether the case is made out by

the defendant or not. Considering the additional issue already

framed, such an amendment is not at all necessary. Hence, this

Court is passing the following order:

ORDER

i. The order passed in I.A.No.23 in O.S.No.18/2010 dated 24.06.2019 by the Additional Senior Civil Judge, Hassan, is set aside.

ii. As this is the suit of the year 2010, the trial Court shall proceed with the matter and

NC: 2025:KHC:618

dispose off the same as expeditiously as possible, but not later than six months.