- 1 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.45941/2018 (GM-CPC) BETWEEN: 1. CHIKKATHAYAMMA W/O LATE M.R. CHANDRASHEKARAIH AGED ABOUT 75 YEARS. 2. M.C. BASAVARAJU S/O LATE M.R. CHANDRASHEKARAIH AGED ABOUT 41 YEARS. BOTH ARE R/O. MELENAHALLI KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572106. …PETITIONERS (BY SRI. B.K. MANJUNATH, ADV.,) AND: 1. M.C. KANTHARAJU ADOPTED S/O SHIVARUDRAIAH AGED ABOUT 45 YEARS R/O. MELENAHALLI VILLAGE KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572106. 2. H.C. SADASHIVAIAH S/O LATE M.R. CHANDRASHEKARAIH AGED ABOUT 37 YEARS R/O. HALASINA NAGENAHALLI NITTUR HOBLI, GUBBI TALUK TUMKUR DISTRICT-572222. …RESPONDENTS (BY SRI. MUSHTAQ AHMED, ADV., FOR R1 SRI. V.B. SIDDARAMAIAH, ADV., FOR R2) Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS. QUASH THE ORDER PASSED BY THE LEARNED IV ADDL. CIVIL JUDGE AND JMFC AT TUMKUR ON I.A. FILED UNDER ORDER 6 RULE 17 OF CPC IN O.S.NO.1067/2010 DATED 1.9.2018 VIDE ANNEX-E BY ISSUING A WRIT OF CERTIORARI & 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 ORAL ORDER This petition is filed seeking the following reliefs: "a) Quash the order passed by the learned IV Additional Civil Judge and JMFC at Tumkur on I.A. filed under order 6 rule 17 of CPC in O.S.No.1067/2010 dated 1/9/2018 vide Annexure- E by issuing a writ of certiorari. b) Issue such other appropriate writ or order or direction as this Hon'ble Court deems fit under the circumstance of the case in the interest of justice." 2. Sri.B.K.Manjunath, learned counsel for the petitioners submits that the petitioners are the plaintiffs in O.S.No.1067/2010 on the file of the IV Additional Civil Judge & JMFC, Tumakuru (for short, 'the trial Court'). In the said suit, the petitioners sought the relief of declaration of their right, title and interest over the suit schedule properties and further relief of permanent injunction against the respondents- defendants. It is submitted that the respondents-defendants - 3 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 have entered appearance and filed the detailed written statement. In the said written statement, the respondent No.2 has taken a stand that suit schedule properties are properties that belonged to the mother of respondent No.2, who purchased the said properties by way of registered sale deed dated 18.11.1970, which has necessitated the petitioners- plaintiffs to file an application seeking amendment of the plaint. Hence, the petitioners have moved an application. However, the trial Court, only on the ground of delay, rejected the application. It is also submitted that the trial Court has further recorded a finding that allowing the amendment would change the nature of the suit, which is incorrect as the suit filed earlier was for declaration of title in respect of the suit schedule properties and now by way of an amendment, the petitioners are claiming an alternative prayer of partition and separate possession of the properties. The amendment sought is an alternative relief so that if the Court comes to the conclusion that the petitioners have failed to establish the title over the suit schedule properties, then petitioner No.1 being the first wife of late M.R.Chandrashekaraiah and petitioner No.2 being one of the heir of late M.R.Chandrashekaraiah, are entitled to - 4 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 share in the properties. In support of his contention, he placed reliance on the decision of this Court in the case of Bharat Bhushan Narang and others vs. Ashok Kumar Manchanda and others1. Hence, he seeks to allow the petition by setting aside the impugned order and to allow the application. 3. Per contra, Sri.V.B.Siddaramaiah, learned counsel for respondent No.2 supports the impugned order of the trial Court and submits that allowing the application for amendment is definitely the discretion of the Court, however, the Court is required to see the conduct of the party, who seeks an amendment. It is submitted that the matter was posted for cross-examination of DW-1 and thereafter six adjournments have been taken by the petitioners and thereafter they filed an application seeking for amendment; the said application is filed belatedly and amounts to abuse of process of law. The said application is rightly rejected by the trial Court, therefore, the same does not call for any interference. Hence, he seeks to dismiss the petition. 1 2017(5) Kar.L.J.70 - 5 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 4. I have heard the arguments of learned counsel for the petitioners, learned counsel for respondent No.2 and perused the material available on record. 5. The material on record would indicate that the petitioner No.1 claiming to be the first wife of late M.R.Chandrashekaraiah and petitioner No.2 claiming to be the son of late M.R.Chandrashekaraiah, filed a suit for declaration of right, title and interest over the suit schedule properties and further prayer of permanent injunction. The entire plaint averments indicate that the petitioners are the heirs of late M.R.Chandrashekaraiah and the suit schedule properties have been divided among the petitioners and Smt.Parvathamma, who is the mother of respondent No.2, and based on such partition, the suit came to be filed for declaration of title and injunction. However, in the written statement, respondent No.2 has taken a specific stand that the suit schedule properties belong to the mother of respondent No.2, which was acquired through the registered sale deeds dated 09.01.1968 and 18.11.1970 when the defendant No.2 has taken the stand that the property was never divided among the mother of respondent No.2 and petitioner No.1, the petitioners are - 6 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 compelled to file an application for amendment seeking alternative relief of partition. Hence, I am of the considered view that seeking alternate relief does not amount to change in the nature of the suit, however, it cannot be ignored that the said application is filed belatedly, that too, after commencement of trial. The Court is required to keep in mind that the principle enumerated under Order VI Rule 17 of CPC is that the amendment is required to be allowed if it is filed at the initial stage of the proceedings i.e., before the commencement of trial, and if the application is filed after completion of trial, it is required to be considered as to whether the party has done due diligence before filing of the application. In the case on hand, petitioner No.1 has averred that the suit schedule properties belong to her late husband M.R.Chandrashekaraiah and after the death of her husband, the property was divided among the mother of respondent No.2 and petitioner No.1, however, the same came to be disputed by respondent No.2, hence, the application was filed. In my considered view, though the application is filed after commencement of trial, it is necessary to decide the controversy involved between the parties with regard to the suit schedule properties. It would be - 7 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 useful to refer to paragraph No.14 in the case of Bharat Bhushan Narang referred supra, which reads as under: "14. A bare reading of Order 6 Rule 17 of CPC would indicate that it enables the parties to lis to amend the pleadings at any stage of the proceedings and Court would permit such amendment on such terms as may be just. Such amendments are permitted for determination of real controversy between the parties. Pre-trial amendments are allowed as a matter of course. However, by virtue of amendment brought to proviso to Rule 17, post-trial amendment can be allowed only in the event of conditions stipulated under the proviso to Rule 17 being satisfied. Delay by itself cannot be a ground on which amendment can be rejected. However, such post- trial amendment would be refused, in the event of the said amendment is bared by limitation or third party rights having crystallized or it would cause great prejudice to the opposite parties." 6. Keeping in mind the aforesaid enunciation of law, in my considered view the petition deserves to be allowed on terms. For the aforementioned reasons, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 01.09.2018 passed on I.A. filed under Order VI Rule 17 of CPC in O.S.No.1067/2010 by the IV Additional Civil Judge & JMFC, Tumakuru, is hereby set aside. - 8 - HC-KAR NC: 2025:KHC:20906 W.P. No.45941/2018 iii. I.A. filed by the petitioners-plaintiffs under Order VI Rule 17 of CPC in O.S.No.1067/2010 is allowed subject to petitioners paying cost of Rs.5,000/- to respondent No.2. iv. Petitioners-plaintiffs shall amend the plaint and file amended petition within a period of two (02) weeks from the date of receipt of certified copy of this order. v. All contentions urged by the parties are kept open. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 41