- 1 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.36211/2019 (GM-CPC) BETWEEN: MR. B.M. ADARSH AGED ABOUT 41 YEARS S/O LATE SRI. B.K. MANJUNATH AGRICULTURIST PERMANENT RESIDENT OF BELAGODU B. HOSAHALLI VILLAGE AND POST MUDIGERE TALUK CHIKMAGALURU DISTRICT-577133. …PETITIONER (BY SRI. A.S. GIRISH, ADV.,) AND: 1. MR. B.D. RAVI AGED ABOUT 58 YEARS S/O B.E. DYAVANNA GOWDA AGRICULTURIST, BELAGODU B. HOSALLI VILLAGE AND POST MUDIGERE TALUK CHIKMAGALURU DISTRICT-577113. 2. SMT. I.N. KRISHNAMMA AGED ABOUT 78 YEARS S/O B.E. DYAVANNA GOWDA AGRICULTURIST, BELAGODU B. HOSALLI VILLAGE AND POST MUDIGERE TALUK CHIKMAGALURU DISTRICT-577113. …RESPONDENTS (BY SRI. CHIDAMBARA G.S. ADV.,) Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING ANNX-G PASSED IN O.S.157/16 BY HON'BLE CIVIL JUDGE AND JMFC MUDIGERE DTD 19.07.2019 AND KINDLY ALLOW THE I.A.NO.2 FILED BY THE PLAINTIFF ON 2.4.2019 BY ISSUANCE OF WRIT OR DIRECTION & 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: WHEREFORE the Petitioner most respectfully prays that this Hon'ble Court be pleased to Issue a Writ in the nature of certiorari quashing ANNEXURE "G" in O.S.No.157/2016 passed by Hon'ble Civil Judge and JMFC Mudigere dated 19-7-2019 and kindly allow the I.A. No.2 filed by the plaintiff on 2-4-2019 by issuance of Writ or direction as this Hon'ble Court may pass in the circumstances of the case in the interest of justice and equity. 2. Sri.A.S.Girish, learned counsel appearing for the petitioner submits that the petitioner filed a suit for declaration and permanent injunction against the defendants and in the said suit, the defendants, who are the adjacent property owners have filed a written statement. It is further submitted that after the death of - 3 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 father of the petitioner, petitioner came to know that both the defendants are in illegal possession of the suit schedule property and the prayer for possession was not sought by inadvertence in the plaint. Hence, an application came to be filed seeking amendment of the paragraph of the plaint and additional prayer for possession. It is also submitted that the said application came to be opposed by the respondents. The trial Court considering the same, rejected the application under the impugned order on the ground that the proposed relief sought in the application would change the nature of the suit and the application is filed at a belated stage and without due diligence. It is submitted that the non-seeking of the prayer for possession was a bonafide mistake on the part of the petitioner and non-allowing of such application would lead to multiplicity of proceedings as the petitioner has the right to file another suit for possession and to avoid such further proceedings, it would be necessary to allow the application by setting aside the impugned order. - 4 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 3. Per contra, Sri.Chidambara G.S., learned counsel appearing for respondent Nos.1 and 2 supports the impugned order of the trial Court and submits that the specific averments made in the paragraph Nos.6 and 11 of the plaint state that the plaintiff is in possession of the suit schedule property and contrary to the said assertion now the amendment is sought claiming that the respondents are in possession of the suit schedule property. The respondents have already filed the written statement and taken their stand. There is a delay of more than four years in filing of such an application. The application is also hit by limitation. In support of his contention he placed his reliance on the following decisions of the Hon'ble Supreme Court and seeks to dismiss the petition. i) Shiv Gopal Sah alias Shiv Gopal Sahu v. Sita Ram Saraugi and Others1 ii) Sampath Kumar v. Ayyakannu and Another2 1 AIR 2007 SC 1478 - 5 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 iii) Vishwambhar and Others v. Laxminarayan and Another3 4. I have heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondents and meticulously perused the material available on record. 5. The pleading and material available on record indicates that the petitioner has filed O.S.No.157/2016 for declaration and permanent injunction with regard to the suit schedule property. At paragraph Nos.6 and 11 of the plaint, the petitioner has averred that during the life time of the father of the petitioner and after his death plaintiff is in possession and enjoyment over the suit schedule property having right and title over the suit schedule property. In para 11, it is averred that the defendants being the adjacent owners of the suit schedule property took undue advantage after the death of the father of the 2 AIR 2002 SC 3369 3 (2001) 6 SCC 163 - 6 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 petitioner and during the time of grief and sorrow tried to dispossess the petitioner illegally without having any title or right over the same. In the application filed by the petitioner in IA.No.2, an averment is made that the adjacent owners of the suit schedule property i.e., respondents took undue advantage after the death of the father of the petitioner and dispossessed the petitioner illegally without any authority for the title over the property. There is no dispute that in paragraph No.6, assertion is made that the petitioner is in possession of the suit schedule property. In para 11, assertion is made that respondents are trying to dispossess the petitioner during the time of death of the father of the petitioner. However, later in the application a specific stand is taken that the respondents have dispossessed and are in possession of the suit schedule property. 6. In my considered view, the filing of application though it is belated would not change the nature of the suit nor cause any prejudice to the respondents as - 7 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 allowing the application would not amount to decreeing the suit in favour of the petitioner. Ultimately, respondents have every right to file an additional written statement asserting their available defence including the limitation with regard to the application filed now. It would be useful to refer to the decision of the Hon'ble Supreme Court in the case of Sampath Kumar referred supra ”9. Order 6, Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not - 8 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and another v. Mamtha Shenoy, (2001) 8 SCC 561)." 7. In view of the law laid down by the Hon'ble Supreme court in the case of Sampath Kumar referred supra, the Court is empowered to allow the application for amendment at any stage of the proceedings and such an amendment is generally required to be considered liberally when the applications are filed at the pre-trial stage. In the instant case, though the application is filed belatedly, the stage is at the time when the matter was posted for cross-examination of PW-1. In other words, the plaintiff has filed an affidavit evidence and immediately thereafter, application is moved, it should be understood and construed that the application is filed at the pre-trial stage as no cross-examination of PW1 is carried out by the respondents. Hence, considering the aforesaid aspects, the application for amendment sought is required to be - 9 - HC-KAR NC: 2025:KHC:20346 W.P. No.36211/2019 allowed on terms as there is definitely a lapse on the part of the petitioner in filing an application belatedly. For the aforementioned reasons, I proceed to pass the following: ORDER i) Writ petition is allowed. ii) Impugned order dated 19.07.2019 passed on IA.No.2 in O.S.No.157/2016 passed by the Principal Civil Judge and JMFC, Mudigere is set aside. Consequently, IA.No.2 filed under Order 6 Rule 17 by the petitioner is allowed. iii) The petitioner shall file amended plaint within a period of two weeks and the respondents are permitted to file additional written statement subject to the petitioner paying cost of Rs.5,000/- to the respondents. iv) It is made clear that insofar as question of limitation raised by respondent No.2 is kept open to be urged and adjudicated by the trial Court. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 36