[Cites 3, Cited by 0]
Karnataka High Court
Shri Mahesh Babu vs Sri C R Channabasappa on 24 March, 2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.7473/2021 (GM-CPC)
BETWEEN:
SHRI. MAHESH BABU
SINCE DEAD REPRESENTED
BY HIS LEGAL REPRESENTATIVES.
1. H.U. LAVANYA
AGED ABOUT 41 YEARS
W/O MAHESH BABU.
2. KUM. R.M. LAKSHMI
Digitally signed AGED ABOUT 17 YEARS
by RUPA V D/O LATE MAHESH BABU.
Location: HIGH 3. KUM. R.M. NAMRATHA
COURT OF AGED ABOUT 15 YEARS
KARNATAKA D/O LATE MAHESH BABU.
ALL ARE R/AT RANGANATHAPURA
LAKKENAHALLI POST
CHELLUR HOBLI, GUBBI TALUK
TUMKUR DISTRICT-572101.
SINCE PETITIONER NO.2 AND 3 ARE
MINORS REPRESENTED BY HER MOTHER
AS A NATURAL GUARDIAN SINCE THEIR
FATHER IS EXPIRED.
...PETITIONERS
(BY SRI. SAMPATH A, ADV.,)
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AND:
1. SRI. C.R. CHANNABASAPPA
AGED ABOUT 67 YEARS
S/O LATE RAJAPPA SHETTY
R/AT NO.56, 2ND CROSS
7TH C MAIN, RPC LAYOUT
VIJAYANAGAR, BANGALORE-560040.
2. SMT. SAKKUBAI @ SAKKU
AGED ABOUT 77 YEARS
W/O LATE K.R. DANANJAYA
C/O SRIRAMULU
GOVINDASWAMY COLONY
RAILWAY ROAD, KOTTAM POST
SIRKALLI TALUK
NAGAPATNAM DISTRICT
TAMIL NADU-611001.
3. THE BRANCH MANAGER
TGMC BANK LTD
RAJAJINAGAR BRANCH
BENGALURU-560010.
[NOTICE TO R-3 MAY BE D/W
AS IT IS A FORMAL PARTY]
...RESPONDENTS
(BY SRI. SRIDHARA N, ADV., FOR R1
SRI. T. BASAVARAJ, ADV., FOR R3
R2 SERVED BUT UNREPRESENTED)
---
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS OF
OS NO.3555/2007 PENDING ON THE FILE OF LEARNED LV
ADDL CITY CIVIL AND SESSIONS JUDGE (CCH-56) AT
BENGALURU. SET ASIDE THE ORDER DTD 08.03.2021 ON IA
NO.XXI IN OS NO.3555/2007 PASSED BY THE LEARNED LV
ADDL CITY CIVIL AND SESSIONS JUDGE (CCH-56) AT
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BENGALURU, VIDE ANNX-A AND CONSEQUENTLY ALLOW THE
APPLICATION & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
18.03.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed challenging the order dated
08.03.2021 passed on I.A.No.XXI filed in
O.S.No.3555/2007 by the LV Additional City Civil and
Sessions Judge at Bangalore (CCH-56) (for short, 'the Trial
Court').
2. Sri.Sampath A., learned counsel for the
petitioners submits that the plaintiffs have filed a suit
against the respondents for the relief of declaration that
the plaintiffs are the owners of the suit schedule property
and further relief to declare that the decree in
O.S.No.6713/2003 and the sale deed dated 23.03.2007
were not binding on them. In the said suit, the plaintiffs
have filed an application seeking amendment of the plaint
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to bring the subsequent events on record. The said
application was rejected by the Trial Court on the ground
that the amendment sought is not connected to the
controversy involved in the suit and as on the date of filing
of the written statement, the defendants have disputed
the possession of the plaintiffs over the suit schedule
property and the prayer sought in the amendment
application is a distinct cause of action and the remedy lies
elsewhere. It is submitted that the defendants filed a suit
against the tenants of the plaintiffs which was decreed and
thereafter, in an execution proceeding, they got the
possession of the suit schedule property which compelled
the petitioners to file an application seeking for the
amendment of the pleading and an additional relief of
possession which is a consequential relief to the main
relief. In support of his contentions, he placed reliance on
the decision of this Court in the case of SHRI
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MOHAMMADRAFI AND ANOTHER Vs. BANDENAWAZ
AND OTHERS1 and seeks to allow the petition.
3. Per contra, the learned counsel appearing for
the respondents supports the impugned order of the Trial
Court and submits that the application is filed for
amendment after the commencement of the trial and
without any due diligence. It is submitted that PW-1 in
the cross-examination has admitted that the defendants
have taken possession in the year 2005 and if that is so,
the amendment sought as well as the prayer for
possession are beyond the period of limitation. It is
further submitted that the tenants of the ground floor
have handed over the possession to the defendant No.1
and insofar as the tenants of the first floor, the defendants
entered into an agreement with them and for the breach
of such agreement, they filed a suit for ejectment which
came to be decreed. All these facts were within the
knowledge of the plaintiffs. Hence, the Trial Court rightly
1
W.P.No.108512/2025 dt. 16.12.25
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declined to entertain the application for amendment. In
support of his contentions, he placed reliance on the
decisions of the Hon'ble Supreme Court in the case of
PANDIT MALHARI MAHALE Vs. MONIKA PANDIT
MAHALE AND OTHERS2, M REVANNA Vs.
ANJANAMMA (DEAD) BY LRS AND OTHERS3 AND
SHANTI DEVI (SINCE DECEASED) THROUGH LEGAL
REPRESENTATIVE. GORAN Vs. JAGAN DEVI AND
ORS.4 and seeks to dismiss the writ petition.
4. I have heard the arguments of the learned
counsel for the petitioners, learned counsel for the
respondents and perused the material available on record.
5. The petitioners filed O.S.No.3555/2007 against
the respondent Nos.1 and 2 seeking prayer to declare that
the plaintiffs are the full and absolute owners of the suit
schedule property and consequently, to declare that the
decree obtained by the defendant No.1 against the
2
(2020) 11 SCC 549
3
(2019) 4 SCC 332
4
(2025) LIVELAW (SC) 900
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defendant No.2 dated 27.11.2005 in O.S.No.6713/2003
and sale deed dated 23.03.2007 registered on 04.04.2007
are null and void and not binding on the plaintiffs. The
case of the plaintiffs is that the suit schedule property was
bequeathed in favour of the original plaintiff by his
adoptive father late K.R.Dhananjaya by way of registered
Will dated 17.12.1999. It is averred that the adoption of
the original plaintiff to the younger brother of the plaintiff's
father is confirmed in the decree in O.S.No.127/1999. The
name of the original plaintiff was entered in the revenue
records based on such Will and the plaintiffs are in
enjoyment of the suit schedule property without any
hindrance, they have made several improvements by
raising the funds. It is further averred that the defendant
No.2 who was residing separately, in collusion with the
defendant No.1, concocted the agreement of sale in the
name of late Sri.K.R.Dhananjaya by forging his signature
and based on such agreement, the defendant No.1 filed a
suit in O.S.No.6713/2013 for specific performance of the
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agreement which came to be decreed. It is also averred
that the defendant No.1 filed an execution petition in
E.P.No.1748/2006 and got the sale deed executed and
registered on 04.04.2007. It is contended that the
defendant No.1 tried to take possession of the property
from the tenants of the petitioners which was resisted by
him. The respondents filed a detailed written statement
denying the assertions in the plaint by contending that the
defendant No.1 is the absolute owner in peaceful
possession and enjoyment of the suit schedule property.
It is specifically denied that the defendants made any
attempt to dispossess the plaintiffs and the tenants from
the suit schedule property.
6. The records further indicate that the defendant
No.1 filed O.S.No.4400/2010 against the tenants who
were in the premises, for ejectment and delivery of the
possession. The said suit came to be decreed on
01.01.2016. The defendant No.1 has contended before
this Court that he has independently entered into an
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agreement with the tenants and for violation of the terms
of the tenancy agreement, the suit for ejection was filed
which was decreed. It is also noticed that the defendant
No.1 filed an execution case in E.P.No.2838/2017 and
through the process of the Court, the tenants were evicted
on 25.01.2019 and the defendant No.1 took possession.
Though it is contended by the defendant No.1 in this
proceeding that the suit and the execution proceedings for
ejectment and taking over the possession is only with
regard to the first floor of the property and the ground
floor property was already with the defendant No.1. I am
of the considered view that the said aspect is required to
be considered by the Trial Court during the trial. It is to
be noticed that the proposed amendment sought by the
plaintiffs is the subsequent events after filing of the suit
and those facts are required to be brought on record for
complete adjudication of the dispute between the parties.
It is to be further noticed that the relief of possession
sought by the plaintiffs is consequential to the main relief
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sought in the plaint and the relief of possession is sought
by the plaintiffs based on the specific foundation that the
defendant No.1 filed the suit against the defendant No.2,
got the sale deed executed in his favour and thereafter,
filed a suit for ejectment against the tenants claimed to be
of the plaintiffs and got them evicted in the execution
proceedings and these events are required to be
considered by the Trial Court to grant the relief sought in
the plaint. It is also noticed that the relief sought by the
plaintiffs in the suit is for the declaration of their
ownership, declaration that the judgment and decree in
O.S.No.6713/2003 and the sale deed dated 23.03.2007
registered on 04.04.2007 are null and void and not binding
on them and if the plaintiffs are able to prove his case
before the Trial Court and the Trial Court decrees the suit
in favour of the plaintiffs, then petitioner cannot be asked
to file a suit for possession separately which would lead to
the multiplicity of the proceedings. The contention of the
defendant No.1 that the plaintiffs were having knowledge
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with regard to the dispossession which is admitted by PW-
1, there is no due diligence and the prayer sought is
barred by the law of limitation, are required to be
considered by the Trial Court during the trial. The decision
in the case of PANDIT MALHARI MAHALE referred
supra, is with regard to the proviso to Order VI Rule 17
read with Section 151 of the Code of Civil Procedure, 1908
(for short, 'the CPC') and in the said case, the plaintiff has
failed to establish due diligence. However, the case on
hand is different on facts as the plaintiffs intend to bring
the subsequent events on record. In the decision in the
case of M.REVANNA referred supra, at paragraphs 7 and
9, it is held as under:
"7. Leave to amend may be refused if it
introduces a totally different, new and inconsistent
case, or challenges the fundamental character of
the suit. The proviso to Order 6 Rule 17 CPC
virtually prevents an application for amendment of
pleadings from being 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
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commencement of the trial. The proviso, to an
extent, curtails absolute discretion to allow
amendment at any stage. Therefore, the burden is
on the person who seeks an amendment after
commencement of the trial to show that in spite of
due diligence, such an amendment could not have
been sought earlier. There cannot be any dispute
that an amendment cannot be claimed as a matter
of right, and under all circumstances. Though
normally amendments are allowed in the pleadings
to avoid multiplicity of litigation, the court needs to
take into consideration whether the application for
amendment is bona fide or mala fide and whether
the amendment causes such prejudice to the other
side which cannot be compensated adequately in
terms of money.
9. Having regard to the totality of the facts and
circumstances of the case, we are of the considered
opinion that the application for amendment of the
plaint is not only belated but also not bona fide,
and if allowed, would change the nature and
character of the suit. If the application for
amendment is allowed, the same would lead to a
travesty of justice, inasmuch as the Court would be
allowing Plaintiffs 1 to 5 to withdraw their
admission made in the plaint that the partition had
not taken place earlier. Hence, to grant permission
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for amendment of the plaint at this stage would
cause serious prejudice to Plaintiff 6 Respondent 1
herein."
7. The aforesaid decision also refers to the aspect
of due diligence and it is further held that the amendment
cannot be claimed as a matter of right and under all the
circumstances. Though normally the amendments are
allowed in pleadings, to avoid multiplicity of litigation, the
Court needs to take into consideration whether the
application for amendment is bona fide or mala fide and
whether the amendment causes any prejudice to the other
side which cannot be compensated in terms of money and
allowing the amendment would lead to withdrawal of
admission. In the case on hand, the plaintiffs intend to
place on record the subsequent event of filing the suit for
ejectment against the tenants, taking over possession
from the tenants in the judicial proceedings and that no
prejudice would be caused to the defendants by allowing
the amendment. Insofar as the alleged admission of PW-1
in the evidence, it is a stray sentence with regard to taking
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of the possession by the defendant No.1 and based on
such a stray sentence, at the stage of consideration of the
application for amendment of the pleadings, there cannot
be any finding with regard to the clear admission of PW-1
or the aspect of limitation. The Trial Court is required to
consider the aspect of admission of PW-1 with regard to
the possession and based on such admission, it is required
to consider whether the plea for possession is beyond the
period of limitation.
8. The Co-ordinate Bench in the case of MOHD.
RAFI has considered the effect of proviso to Order VI
Rule 17 of the CPC. Some of the paragraphs of the said
decision is extracted hereinbelow:
"22. Since the original text of Order VI Rule 17 of
the Code is retained in the 2002 amendment to the
Code, it is apparent that Parliament did not do
away with the primary purpose of the rule providing
amendment, i.e., to:
(a) decide the real questions in controversy;
(b) avoid multiplicity of litigation.
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23. The principles of liberal construction still apply
in those situations where the application seeking
amendment of pleading is filed to avoid multiplicity
of litigations and to resolve all controversy between
the parties, notwithstanding the proviso. However,
the proviso cannot be made nugatory; it has a
purpose to serve in appropriate cases.
24. It may not be possible to exhaustively list
where amendment applications "post-
commencement of trial" have to be allowed in spite
of the party applying for amendment not passing
the "due diligence test".
25. The Court is of the considered view that in the
following instances (illustratively and not
exhaustively), applications seeking amendment of
pleadings can be allowed without the "due diligence
test," even if such applications are filed "post-
commencement of trial."
Applications to:
(a) correct typographical errors in the dates of
events, documents, etc.;
(b) correct property number, extent, location, or
discrepancies in the boundary or any other
misdescription of the property;
(c) insert events and developments that have taken
place post-filing of the suit and which have a
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bearing on the final decision;
(d) incorporate a prayer owing to a subsequent
event that has taken place during the
pendency of the suit, keeping open the
question of limitation;
(e) add a few additional facts or furnish better
particulars to the facts already pleaded;
(f) add facts in support of the relief already
claimed;
(g) seek relief in the alternative, which is in the
nature of a lesser relief than the one already
claimed. Example: In a suit for declaration of
exclusive title and injunction, an application
seeking the alternative relief of partition.
(h) Seek additional relief or relief ancillary to the
main relief when the relief sought by way of
amendment is available based on the pleadings
already made.
26. In the aforementioned situations (broadly or
generally speaking, excluding exceptional cases), in
case the application seeking amendment of
pleading is rejected on the premise that the
applicant has not passed the "due diligence" test, it
would cause injustice and would defeat the object
of the first (main) part of Order VI Rule 17 of the
Code, which aims at minimizing or avoiding
multiplicity of litigation and provides for
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determining real questions in controversy between
the parties.
29. There is one more angle to hold that every
application under Order VI Rule 17 of the Code
"post commencement of the trial" need not undergo
the due diligence test as contemplated in the
proviso. Order VI Rule 17 of the Code was omitted
in 1999. It was re-introduced in 2002, albeit with a
restrictive proviso. However, reintroduced part still
contains the expression "at any stage of the
proceedings". Said expression is not replaced by
the expression "before commencement of the trial"
or any other suitable expression of giving similar
meaning.
35. In the instant case, the plaintiffs asserted to be
the owners of the suit property and claimed to be in
possession as of the date of the suit, and sought
the declaration of title and injunction. In the year
2024, 10 years after the suit, and after cross-
examination of PW2, amendment was sought to
incorporate the plea that plaintiffs were
dispossessed in 2022 and the additional relief of
possession. Whether the plaintiffs were
dispossessed prior to the suit as alleged by the
defendants, or during the pendency of the suit as
alleged by the plaintiffs, is a matter of trial.
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36. Thus, this is one such case where the "due
diligence" test as provided under the proviso to
Order VI Rule 17 of the Code does not assume
importance, and in a situation brought in this case,
the proviso has to yield to the main part of Order VI
Rule 17 of the Code to achieve the purpose behind
the provision providing for amendment. The Trial
Court could not have dismissed the application
seeking amendment to incorporate the prayer for
possession and facts to support such a prayer
merely because the trial had commenced.
37. On the question of delay: The Trial Court also
dismissed the application on the premise that the
application seeking amendment was filed 10 years
after the suit.
44. The application seeking amendment was filed in
2024 to seek the relief of possession, asserting that
the dispossession occurred in 2022. This is
apparently contrary to the admission in cross-
examination.
45. To substantiate the dispossession in the year
2022, the plaintiffs rely on the statement of PW2.
46. The question is whether the Court must at the
stage of application seeking amendment of pleading
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is required to determine the merits of the proposed
amendment i.e., if dispossession occurred in 2014
or 2022. The law in this behalf is well-settled: the
Court is not required to get into the merits of
averments in the proposed amendment while
considering the amendment application. There is no
need to decide on the date of dispossession while
considering the application seeking amendment.
Thus, even if the plaintiffs have admitted in cross-
examination that they were dispossessed in 2014
(i.e., prior to the suit), the application filed in 2024
seeking amendment to incorporate the plea for
possession is necessary to decide the real
controversy between the parties, as to when the
dispossession took place."
9. Keeping in mind the various decisions referred
supra and considering the peculiar facts and circumstances
of the case, I am of the considered view that the Trial
Court has committed an error in recording the finding that
the proposed amendment does not amount to bringing
subsequent events on record and such facts are not
connected with the controversy involved in the suit and it
is a distinct cause of action. The proposed amendment, as
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already stated supra is the subsequent event that the
plaintiffs intend to bring on record with regard to the
dispossession of the plaintiffs through the process of the
Court in the suit and the execution proceedings instituted
by the defendant No.1 and no prejudice would be caused
to the other side if the amendment is allowed. Keeping
this principle in mind and also considering the fact that the
proposed amendment would aid the main relief sought in
the plaint, the plaintiffs cannot be compelled to file a
separate suit for possession.
10. For the aforementioned reasons, I proceed to
pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 08.03.2021 passed
on I.A.No.XXI filed in O.S.No.3555/2007 by the
LV Additional City Civil and Sessions Judge at
Bangalore, is set aside. Consequently,
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I.A.No.XXI filed under Order VI Rule 17 read
with Section 151 of the CPC, is allowed.
No order as to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 3 Sl No.: 1
