- 1 - NC: 2025:KHC:9824 WP No. 36670 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 36670 OF 2019 (GM-CPC) BETWEEN: 1. N HASSAN SAHEB (SINCE DEAD BY LRS) SRI HANEEF SAHEB AGED 53 YEARS S/O LATE HASSAN SAHEB 2. VAHIDA ISMAIL AGED 47 YEARS, W/O LATE ISMAIL NELYAMAJALU 3. MISS. SUHANA ISMAIL AGED 26 YEARS, D/O LATE ISMAIL NELYAMAJALU 4. MISS. SANA AGED 22 YEARS, D/O LATE ISMAIL NELYAMAJALU NO. 1 TO 4 ARE RESIDING AT SUHANA MANZIL, BELLARE VILLAGE AND POST, SULLIA TALUK, D.K DISTRICT 5. SAINT AMMAJAN AGED 45 YEARS D/O LATE HASSAN SAHEB 6. SMT. KHATEEJA Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9824 WP No. 36670 of 2019 AGED 42 YEARS D/O LATE HASSAN SAHEB 7. SMT. HALEEMBAI AGED 40 YEARS D/O LATE HASSAN SAHEB 8. SMT MAIMOONA AGED 38 YEARS D/O LATE HASSAN SAHEB 9. SRI BASHEER AHAMMAD AGED 36 YEARS S/O LATE HASSAN SAHEB 10. SRI ABDUL RASHEED AGED 34 YEARS S/O LATE HASSAN SAHEB 11. SRI ABDUL MAJEED AGED 32 YEARS S/O LATE HASSAN SAHEB ALL ARE RESIDING AT NELYAMAJALU, BELLARE VILLAGE AND POST, SULLIA TALUK, D.K. – 574 239. …PETITIONERS (BY SRI. K RAVISHANKAR, ADVOCATE) AND: 1. KHAILTAMMA (SINCE DEAD BY LRS) BEEPATHUMMA @ BEEVI, - 3 - NC: 2025:KHC:9824 WP No. 36670 of 2019 AGED 54 YEARS D/O LATE MOIDU KUNHI W/O ABDUL PAHIMAN 2. SARAMMA AGED 51 YEARS D/O LATE MODU KUNHI W/O ADRAMA 3. RUKIYA D/O LATE MODU KUNHI AGED 49 YEARS, W/O SULAIMAN 4. MAIMOONA AGED 47 YEARS, D/O LATE MOIDU KUNHI, W/O SHAHUL HAMEED, ALL ARE RESIDING AT NELYAMAJALU BELLARE VILLAGE AND POST SULLIA TALUK, D.K. – 574 239. …RESPONDENTS (BY SRI. PRASANNA D P AND SRI. SHIVA PUTRAPPA, ADVOCATES FOR R1 TO R4) THIS W.P. FILED UNDER ARTICLE 227 OF CONSTITUION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.07.2019 PASSED IN O.S.NO.22/2013 PENDING ON THE FILE OF THE CIVIL JUDGE SULLIA PRODUCED VIDE ANNX-'A' TO THE W.P. AND TO ALLOW I.A.NO.XIII, AS PRAYED FOR. THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL - 4 - NC: 2025:KHC:9824 WP No. 36670 of 2019 ORAL ORDER The petitioners/plaintiffs are before this Court being aggrieved by the Order dated 06.07.2019 passed in O.S.No.22/2013 on the file of the Civil Judge and JMFC, Sullia on the application in I.A.No.XIII filed by the plaintiffs under Order 6 Rule 17 read with Section 151 of CPC seeking to amend the plaint to include an additional extent of land to the schedule of the plaint. By the impugned order, the trial Court has rejected the said application only on cryptic reasons that the suit is pending since 2013 and the same is set down for further evidence of plaintiffs and the trial has already commenced, therefore, the belated application was not liable to be allowed. 2. The learned counsel for the petitioners reiterating the averments and the grounds urged in the petition submits that the trial Court without even adverting to the reasons assigned in the affidavit accompanying the application has proceeded to dismiss the application mechanically. He submits, originally the property in Sy.No.231/1A5 measures 0.54 cents described in Schedule ‘A’ to the plaint. That the plaintiff had given permissive possession of the same to the defendants to - 5 - NC: 2025:KHC:9824 WP No. 36670 of 2019 an extent of 0.05 cents of land. That the specific case of the plaintiffs in the application is that during the pendency of the said suit, the defendants had encroached the additional extent of 06.45 cents. Thus the defendants were in possession of 11.75 cents of land instead of 0.05 cents which was originally permitted to be occupied by the defendants. It is under these circumstances, an amendment was sought to include the additional extent of land. Thus he submits that the defendants are in possession of 11.75 cents of land which includes additional extent of land that was encroached upon during the pendency of the suit which could never have been brought on record at the time of filing of suit. Hence, learned counsel for the petitioners seeks to allow the petition. 3. The learned counsel for the respondents/defendants submits that the application is filed after commencement of trial and in terms of the provisions of Order 6 Rule 17 of CPC, no application for amendment could be allowed once the trial is commenced. He further submits, the trial Court has committed no error in dismissing the said application in view of aforesaid provisions of law. Hence, he prays to dismiss the petition. - 6 - NC: 2025:KHC:9824 WP No. 36670 of 2019 4. Heard counsel for the respective parties and perused the records. 5. Para-2 of the affidavit accompanying application for amendment reads as under: I say that I have filed the suit for the possession of the suit “B” schedule property wherein the residential house is situated. I say that at the time of filing of suit, the defendant was in possession of 05 cents of land. As such, the plaintiff sought for the possession of only 05 cents of land. After filing of the suit, the defendant has encroached further 06.45 cents of land belongs to the plaintiff in the same survey number which is not known to the plaintiff till the visit of the court commissioner. That when the court commissioner visited the suit property and measured the suit property the plaintiff came to know that the defendant had encroached 11.75 cent of land in the said survey number. Now it is very necessary to amend the plaint to that extent and make it 11.45 cents. Otherwise, the plaintiff has to file another suit for the possession of remaining 6.45 cents of land.” 6. Perusal of the aforesaid reasoning would indicate that the plaintiff came to learn about the defendants occupying additional extent of 6.45 cents of land only upon the report of the Commissioner who was appointed by the Court and that the plaintiffs were not aware of the same prior to filing of the suit. Since, the Commissioner is stated to have been appointed after commencement of the trial, the subsequent event which has - 7 - NC: 2025:KHC:9824 WP No. 36670 of 2019 come to the notice of the plaintiffs is sought to be brought on record. The trial Court, as rightly pointed out by the learned counsel for the petitioners has lost sight of this aspect of the matter, even a while, rejecting the application merely because the matter is set down for evidence and the trial has already commenced. Subsequent events as above could not be expected by the plaintiffs to have brought on record at the time of filing of the suit by adding the additional extent of land 6.45 cents of land in the schedule of the plaint, neither the scope of suit would be changed nor would cause any prejudice to the defendants. It is always open for the defendants to counter the said allegation. In that view of the matter, the writ petition is liable to be allowed. Hence, the following: ORDER i. The writ petition is allowed. ii. The order dated 06.07.2019 passed on I.A.No.XIII in O.S.No.22/2013 pending on the file of the Civil Judge and JMFC, Sullia is set aside. iii. I.A.No.XII filed under Order 6 Rule 17 read with Section 151 of CPC is allowed. - 8 - NC: 2025:KHC:9824 WP No. 36670 of 2019 iv. The plaintiffs are permitted to carry out the necessary amendments to the plaint in the trial Court. v. The defendants are permitted to file additional written statement if any, and the trial Court shall proceed thereafter in accordance with law. vi. The suit is pending since 2013, the same shall be disposed of as expeditiously as possible within outer limit of one year from the date of receipt of certified copy of this order. SD/- (M.G.S. KAMAL) JUDGE JS List No.: 1 Sl No.: 16