Karnataka High Court
T M Nanje Gowda vs A M Some Gowda on 22 July, 2025
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W.P. No.5425/2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.5425/2020 (GM-CPC)
BETWEEN:
T.M. NANJE GOWDA
S/O LATE MALLEGOWDA
AGED ABOUT 66 YEARS
R/O KUVEMPUNAGAR, KOTE
SINCE DECEASED BY HIS LRS.
Digitally signed 1. SMT. KAVERI T.N.
by RUPA V W/O SATHYAPAL
Location: High HOUSE WIFE
Court of AGED ABOUT 52 YEARS
karnataka R/O. GIRISDARSHINI
OPPOSITE TO IDSG COLLEGE
BEEKANAHALLI ROAD, JYOTHINAGAR
CHIKKAMAGALUR-577101.
2. SATISH T.N.
S/O LATE T.M. NANJEGOWDA
AGED ABOUT 50 YEARS
AGRICULTURIST
R/O. MUGITHIHALLI VILLAGE
NEAR SANNASIDDEGOWDA'S HOUSE
MUGTHIALLI POST
CHIKKAMAGALUR TALUK AND DIS-577101.
3. SMT. KAVITHA T.N.
W/O ANIL KUMAR
AGED ABOUT 48 YEARS
HOUSE WIFE
R/O 21, 1ST MAIN, VAISHNAVI LAYOUT
VIDYARANYA, BANGALORE 97.
4. SMT. MAMATHA T.N.
W/O YOGESH K.M
AGED ABOUT 46 YEARS
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HOUSEWIFE
R/O SANKETH NILAYA
FOREST LAYOUT
NEAR BSNL TOWER
SRINIVASA NAGAR
RAMPURA POST
CHIKKAMAGALUR TALUK
AND DIS-577101.
5. SMT. VEENA T.N.
W/O RAJESH .M
HOUSE WIFE
AGED ABOUT 44 YEARS
R/O HALE MUDIGERE VILLAGE
MUDIGERE POST AND TALUK
CHIKKAMAGALUR TALUK-577101.
...PETITIONERS
(BY SRI. GIRISH B. BALADARE, ADV.,)
AND:
1. A.M. SOMEGOWDA
S/O MANJEGOWDA
AGED ABOUT 61 YEARS
AGRICULTURIST.
2. PRASHANTH
S/O SOMEGOWDA
AGED ABOUT 34 YEARS
AGRICULTURIST.
3. ABHIJITH A.P.
S/O PUTTEGOWDA
AGED ABOUT 34 YEARS
AGRICULTURIST.
4. SMT. PARVATHAMMA
W/O MANJEGOWDA
AGED ABOUT 64 YEARS
AGRICULTURIST.
ALL ARE R/O. ARENAHALLI VILLAGE
HALASUMANE POST
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CHIKKAMAGALURU TALUK
AND DISTRICT 577101.
5. CHANDRASHEKAR
S/O THIMMEGOWDA
AGED ABOUT 51 YEARS
AGRICULTURIST
R/O THONDAVALLI VILLAGE
VASTARE HOBLI AND POST
CHIKKAMAGALUR TALUK
AND DIS-577101.
6. ABDUL KHADER
S/O LATE ABDULLA HAJJE
AGED ABOUT 56 YEARS
R/O CHRISTIAN COONY
CHIKKAMAGALUR-577101.
7. K.P. SRINIVASA
S/O H. RANGAIAH
AGED ABOUT 66 YEARS
R/O D. NO.193, 13TH 'B' CROSS
9TH MAIN, HSR LAYOUT
BANGALORE 560102.
...RESPONDENTS
(BY SMT. YASHODHA Y. RAJOLI, ADV., FOR
SMT. ASHWINI RAJAGOPAL, ADV., FOR R7
R2 TO R6 ARE SERVED AND UNREPRESENTED
V/C/O DTD:03.07.2025 PETITION AGAINST R1 STANDS ABATED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ANNEXURE-E
THAT THE ORDER DTD.7.2.2020 PASSED BY THE II ADDITIONAL
CIVIL JUDGE AND JMFC COURT AT CHIKKAMAGALURU IN
O.S.NO.326/2014 ON IN IA NO.11 FILED UNDER ORDER 6 RULE 17
CONSEQUENTLY ALLOW THE APPLICATION NO.11 FILED UNDER
ORDER 6 RULE 17 BY THE PETITIONER & ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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W.P. No.5425/2020
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ORAL ORDER
This petition is filed seeking following reliefs:
"a) Issue writ of certiorari or any other
appropriate writ, directions or order quashing the
Annexure 'E' that the order dated 07-02-2020
passed by the II Additional Civil Judge and JMFC
court at Chikkamagalur in O.S.No.326/2014 on
IA.No.11 filed under Order 6 Rule 17 consequently
allow the application No.11 filed under Order 6
Rule 17 by the petitioner, in the interest of justice
and equity."
2. Sri.Girish B. Baladare, learned counsel
appearing for the petitioners submits that the petitioners
filed a suit for relief of declaration that they are the
absolute owners in possession of the schedule 'A' property
and permanent injunction restraining the defendants from
obstructing the plaintiffs from using the schedule 'B'
property. It is further submitted that the assertion of the
petitioners is that the petitioners are the owners of
schedule 'A' property and schedule 'B' property is a mud
road through which the petitioners reach schedule 'A'
property and which has been obstructed by the
respondents/defendants herein. It is also submitted that
during the pendency of the said suit the petitioners filed
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an application seeking for amendment of the plaint to
incorporate certain survey numbers in the schedule 'B'
property and also to correct the name of defendant No.7
as Sri.K.R.Srinivasa instead of Sri.K.P.Srinivasa. It is
submitted that the proposed amendment came to be
rejected by the trial Court solely on the ground that the
same is filed after the commencement of the trial and
there is no due diligence. It is submitted that the
petitioners came to know that the mud road passes
through the other survey numbers and they intend to add
those survey numbers in the schedule 'B' property and the
proposed amendment would not cause any prejudice to
the other side. Hence, he seeks to allow the petition.
3. Per contra, Smt.Yashoda Y. Rajoli, learned
counsel appearing on behalf of Smt.Ashwini Rajagopal,
learned counsel for respondent No.7 supports the
impugned order of the trial Court and submits that the
proposed amendment sought by the petitioners is after the
commencement of the trial and there is a clear bar under
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Order VI Rule 17 proviso to allow such application which
has been rightly considered by the trial Court and rejected
the application. It is submitted that the proposed
amendment would change the nature of the suit and there
is no due diligence in filing such application. In support of
her contentions, she placed reliance on the decision of this
Court in the case of Smt.Venkatamma Namasivayan
and Others v. Sri.K.Anil Kumar and Others1 and
submits that in similar circumstances, this Court
considering proviso of Order VI Rule 17, rejected the
amendment. Hence, she seeks to dismiss the petition.
4. I have heard the arguments of the learned
counsel for the petitioners, the learned counsel for
respondent No.7 and meticulously perused the material
available on record. I have given my anxious consideration
to the submissions advanced on both sides.
5. The material on record indicate that the
petitioners filed OS.No.326/2014 for a relief of declaration
WP.No.16411/2025 disposed on 08.07.2025
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that the plaintiffs are the absolute owners in possession of
schedule 'A' property and the plaintiffs have got rights
over the schedule 'B' property to ingress and egress to
their property by way of easement of prescription as well
as necessity. The schedule 'A' property is shown as
Sy.No.372/2, 3, 4 and 5 situated at Vastare Village and
Hobli, Chikmagaluru Taluk having common boundaries.
The schedule 'B' property is shown in the plaint as a mud
road running in Sy.No.372 of Vastare Village and Hobli,
Chikmagalur Taluk, from Marikatte measuring 1/4 km in
length and 12 feet width. The records indicate that the
trial has commenced in the said suit and when the matter
was posted for cross examination of PW.2, the petitioners
filed an application under Order VI Rule 17 r/w Section
151 of the Code of Civil Procedure, 1908 (for short 'CPC')
seeking to amend the plaint. The trial Court rejected the
said application under the impugned order dated
07.02.2020. The proposed amendment indicates that the
petitioners intend to add survey numbers in schedule 'B'
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property i.e., Sy.Nos.372/8, 372/7, 372/6, 372/1, 411 and
410 in place of Sy.No.372 and also sought correction of
the name of defendant No.7 as Sri.K.R.Srinivasa instead of
Sri.K.P.Srinivasa. To support the said application, the
petitioner No.2 filed an affidavit. In the affidavit, it is
indicated that due to inadvertence and bonafide reasons at
the time of presentation of plaint, the petitioners were not
aware about the survey numbers through which the mud
road passes and later he came to know about the same
after obtaining the survey records, hence, there is a delay
in filing the application.
6. In my considered view, the explanation offered
by the petitioner is required to be accepted as he has
made his best effort to secure the particulars, however, he
could not at the time of filing of the petition and it is
stated that the said particulars recently came to his
knowledge and he filed an application to amend the plaint.
In my considered view, the proposed amendment would
neither change the nature of suit, nor change the cause of
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action, nor the scheme of the suit. The proposed
amendment is only in the form of clarification of the
existing suit schedule property and also to correct the
name of defendant No.7, which definitely would not cause
any prejudice to the other side. In fact, the proposed
amendment would assist the trial Court in completely
adjudicating the dispute between the parties.
7. The decision relied by the learned counsel for
respondent No.7 has no application to the case on hand.
There is no dispute that there is a bar in allowing the
application for amendment of pleading once the trial is
commenced. However, in the case on hand, the proposed
amendment would neither alter the prayer in the suit nor
change the cause of action nor take away any admission.
Hence, in my considered view, the proposed amendment
is required to be allowed. In the aforesaid case referred by
the learned counsel for respondent No.7, there was delay
of 14 years in filing an application for amendment and on
facts of that case, it is evident that the proposed
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amendment is sought to insert the new survey numbers,
which are not clarificatory in nature. Hence, the aforesaid
judgment has no application to the case on hand.
Considering the nature of amendment sought and the
nature of suit as the petitioners are seeking declaration
that they have rights of ingress and egress over the suit
schedule property which is required to be adjudicated by
the trial Court based on the pleading and the said
proposed amendment would aid to adjudicate the said
dispute. Hence, I proceed to pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order dated
07.02.2020 passed on IA No.11 in
OS.No.326/2014 by the II Additional Civil
Judge and JMFC, Chikkamagaluru is hereby
set aside.
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iii) Consequently, IA No.11 filed by the
petitioners under Order VI Rule 17 r/w
Section 151 of CPC is allowed.
iv) The petitioners shall file amended
plaint within 2 weeks from the date of the
receipt of this order.
No orders as to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK
