- 1 - NC: 2025:KHC:3262 WP No. 54002 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 54002 OF 2017 (GM-CPC) BETWEEN: 1. SRI. T. MANJUNATH S/O. M. THIPPESWAMY, AGED ABOUT 36 YEARS, LIBRARY ASSISTANT, BAPUJI EDUCATION CENTRE, R/AT DOOR NO.100, 5TH CROSS, LABOUR COLONY, DAVANAGERE-577 002. 2. SRI. T. RAMU S/O. M. THIPPESWAMY, AGED ABOUT 33 YEARS, BUSINESS, R/AT DOOR NO.100, 5TH CROSS, LABOUR COLONY, DAVANAGERE-577 002. 3. SRI. T. SHANKAR S/O. M. THIPPESWAMY, AGED ABOUT 31 YEARS, BUSINESS, R/AT DOOR NO.100, 5TH CROSS, LABOUR COLONY, DAVANAGERE-577 002. 4. SRI. T. NAGARATHNA D/O. M. THIPPESWAMY, AGED ABOUT 28 YEARS, R/AT DOOR NO. 100, 5TH CROSS, LABOUR COLONY, DAVANAGERE-577 002. …PETITIONERS Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3262 WP No. 54002 of 2017 (BY SMT. THAMINA BEKAL, ADVOCATE FOR SRI. HAREESH BHANDARY T., ADVOCATE) AND: 1(A). SMT. GANGAMMA, W/O. LATE THIPPESWAMY, AGED ABOUT 65 YEARS, R/AT DOOR NO.817/7, 2ND STAGE, SHIVAKUMARASWAMY LAYOUT, DAVANAGERE-577 002. 2. SRI. A. C. RAMESH S/O. CHANDRASHEKARAPPA, AGED ABOUT 52 YEARS, R/AT DOOR NO. 817/7, 2ND STAGE, SHIVAKUMARASWAMY LAYOUT, DAVANAGERE-577 002. 3. SMT. LALITHA. B W/O. SRI. A. C. RAMESH, AGED ABOUT 44 YEARS, R/AT DOOR NO.817/7, 2ND STAGE, SHIVAKUMARASWAMY LAYOUT, DAVANAGERE-577 002. …RESPONDENTS (R1(A) SERVED AND REPRESENTED; BY SRI. SANTHOSH R. NELAKUDRI, ADVOCATE FOR R2 AND 3) THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ANNEXURE-A DATED 04.11.2017 MADE ON I.A.NO.XII IN O.S.NO.330/2011 BY THE COURT OF PRINCIPAL CIVIL JUDGE, DAVANAGERE AND ETC. THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:3262 WP No. 54002 of 2017 CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in I.A.No.12 in O.S.No.330/2011 dated 04.11.2017, by the Principal Civil Judge, Davanagere, the plaintiffs are before this Court. 2. It is the case of the plaintiffs that they have filed a suit seeking partition and separate possession and to allot 1/5th share in the suit schedule properties. The suit is filed in the year 2011. In the year 2016, plaintiff No.2 had filed an I.A. stating that though in the pleadings they have stated about the sale deed i.e., executed in favour of defendant Nos.2 and 3 by defendant No.1 in respect of the joint family property in the year 2001. However, they have not sought the relief that the said sale deed is not binding on them. Further, instead of mentioning that the share she is entitled to is 4/5th share, it is stated that she sought for 1/5th share as such they come up with an application seeking amendment. 3. The Trial Court by order impugned had dismissed the said application. While dismissing the said application, the Trial Court had observed that the proposed amendment - 4 - NC: 2025:KHC:3262 WP No. 54002 of 2017 regarding cancellation of sale deed is time barred plea. It is settled principle of law that time barred plea cannot be permitted to be added by way of an amendment. Relying on the judgment of this Court in case of B.S. Prakash Vs. Gnaneshwar Rao and Others1, the Court had held that the amendment cannot be allowed and accordingly, dismissed the application. 4. Learned counsel appearing for the plaintiffs/ petitioners submits that by way of this amendment they are not introducing any other new facts to the pleadings, in fact though they have stated all the facts, only the relief was not sought. It is submitted that if this amendment is allowed, no prejudice would be caused to the defendants. This aspect was not considered by the Trial Court. She relied on the judgment of this Court in case of Vadde Sanna Hulugappa and others Vs. Vadde Sanna Hulugappa and others2. Relying on this judgment, learned counsel submits that whether the relief of cancellation of sale deed is sought or not, it will not have a binding in a suit for partition. It is also argued that even 1 2016(4) KCCR 2955 2 ILR 1998 Karnataka 2127 - 5 - NC: 2025:KHC:3262 WP No. 54002 of 2017 whether the party had sought for 1/5th share or 4/5th share, basing on the entitlement of the parties, the Court can grant such a relief. It is submitted that without considering all these aspects, the Trial Court had dismissed the application. 5. Learned counsel appearing for the respondents/ defendant Nos.2 and 3 submits that they have purchased the property from the defendants in the year 2001. The suit is filed in the year 2011. It is submitted that this being a registered document as per Section 3 of the Transfer of property Act, it is very much in the constructive notice of the plaintiffs and it is barred by limitation. Further, during the course of evidence, when they have taken a plea with regard to the maintainability of the suit, at that time to cover up the latches, the present application came to be filed. He submits that by way of an amendment the time barred reliefs cannot be permitted. Further, he submits that after the amendment to Order 6 Rule 17 of CPC, the duty is cast on the party to plead that in spite of due diligence the facts which they sought to place before the Court by way of amendment could not be brought to the notice of the court. In this case no such averment is made and just like that they have come up with this amendment. It is - 6 - NC: 2025:KHC:3262 WP No. 54002 of 2017 submitted that party cannot be permitted to amend the plaint. He had relied on the judgment of Apex Court in case of Basavaraj Vs. Indira and others3 where the Hon’ble Apex Court observed as follows: 10. The proviso to Order 6 Rule 17 CPC provides 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. In the case in hand, this is not even the pleaded case of Respondents 1 and 2 before the trial court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of Respondents 1 and 2-plaintiffs. 11. The relevant paragraphs of the application seeking amendment of the plaint are reproduced hereunder: "2. That, due to oversight and by mistake the plaintiff was unable to sought relief declaration 3 (2024) 3 SCC 705 - 7 - NC: 2025:KHC:3262 WP No. 54002 of 2017 of decree as null and void and unable to pay required court fee some unavoidable circumstances and the proposed amendment is very essential for deciding the matter in dispute. 3. * * * 4. That, if the proposed amendment is allowed no prejudice will be cause to the other side, on the other hand if it is not allowed then the deponent will be put to great loss and will also leads multiplicity of litigations. Hence it is just and proper to allow the proposed amendment to meet the ends of justice." (sic) 12. This Court in M. Revanna v. Anjanamma opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order 6 Rule 17 CPC prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Para 7 thereof is extracted below: (SCC p. 335) "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 - 8 - NC: 2025:KHC:3262 WP No. 54002 of 2017 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 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." Relying on para Nos.10, 11 and 12 of the judgment, the learned counsel submits that the Trial Court had rightly dismissed the application and the writ petition is liable to be dismissed. - 9 - NC: 2025:KHC:3262 WP No. 54002 of 2017 6. Having heard the learned counsels on either side, perused the material on record. The suit is filed for partition and separate possession seeking 1/5th share in the year 2011. The sale deed in respect of defendant Nos.2 and 3 is of the year 2001. In spite of taking all these pleadings they have not sought for the said relief. When the case has come to the stage of arguments, at that stage this application was filed. Whether a relief is time barred or not, will not be considered by the Court at the time of allowing an application under Order 6 Rule 17 of CPC. While allowing an application under Order 6 Rule 17 of CPC., the consideration of the Court is not on whether it is a time barred debt or not and the Court has to look at the pleadings and at what stage the application is filed and whether they could make out the case for amendment of the pleadings and once the amendment is sought, it is for the Trial Court to frame an issue and to decide whether the said relief sought for is within limitation or not which is on the merits of the matter. Coming to the facts of the case, this Court had perused the I.A., filed in support of the application under Order 6 Rule 17 of CPC. There is no whisper about why these pleadings were not taken at an appropriate stage. In view of the same, when the - 10 - NC: 2025:KHC:3262 WP No. 54002 of 2017 plaintiff could not make out the case for the amendment with regard to a declaration that the said sale deed executed by defendant Nos.2 and 3 is in favour of defendant Nos.2 and 3, is not binding. Particularly when the sale deed is of the year 2001 and the relief of declaration sought is in the year 2016. The Trial Court had rightly dealt with the same and held that the amendment is not permissible, but when it comes to the entitlement of the share of the plaintiff is concerned, in a suit for partition, based on the pleadings of the parties, which is already put forth if a share is wrongly mentioned. Even if the said amendment is permitted, it would not cause any prejudice to defendant Nos.2 and 3. It is submitted that defendant No.1 is no more and the petitioners are the legal heirs of defendant No.1. All the petitioners are the legal hairs in that case. Defendant Nos.2 and 3 cannot have any objection as far as that amendment is concerned. In view of the same, this Court is passing the following: ORDER i. Accordingly, the writ petition is partly allowed. - 11 - NC: 2025:KHC:3262 WP No. 54002 of 2017 ii. The amendment as far as the share of the plaintiffs with regard to 4/5th share is concerned is allowed and no interference is called for with regard to the remaining amendment and the order of the Trial Court holds good. iii. All I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 32