- 1 - HC-KAR NC: 2025:KHC:32777 MSA No. 26 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 26 OF 2018 (RO) BETWEEN: 1. SRI NAGESHA S/O. LATE HANUMEGOWDA, AGED ABOUT 46 YEARS 2. SRI. CHIKKADEVEGOWDA S/O LATE HANUMEGOWDA, AGED ABOUT 51 YEARS 3. SRI. SWAMY S/O LATE HANUMEGOWDA, AGED ABOUT 54 YEARS 4. SRI. SIDDARAJU S/O LATE HANUMEGOWDA, AGED ABOUT 49 YEARS 5. SRI. MARILING GOWDA S/O LATE HANUMEGOWDA, AGED ABOUT 54 YEARS ALL ARE RESIDING AT THAMMADAHALLI VILLAGE, KASABA HOBLI, MALAVALLI TALUK, MANDYA DISTRICT-571 430 …APPELLANTS (BY SRI P N NANJA REDDY, ADVOCATE) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32777 MSA No. 26 of 2018 AND: 1. SRI KRISHNA S/O LATE CHIKKAVANU @ LINGEGOWDA, AGED ABOUT 37 YEARS 2. SRI. RAJANNA S/O CHIKKAVANU @ LINGEGOWDA, AGED ABOUT 43 YEARS BOTH ARE RESIDING AT THAMMADAHALLI VILLAGE, KASABA HOBLI, MALAVALLI TALUK, MANDYA DISTRICT-571 430 …RESPONDENTS (BY SRI RAJA L, ADVOCATE FOR R1; R2-RAJANNA -SERVED) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 08.01.2018 PASSED IN RA.NO.11/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.02.2014 PASSED IN O.S.NO.128/2011 ON THE FILE OF THE 1ST ADDITIONAL CIVIL JUDGE, MALAVALLI, REMITTING BACK THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:32777 MSA No. 26 of 2018 ORAL JUDGMENT Heard Sri P.N. Nanja Reddy, learned counsel for the appellants and Sri Raja L., learned counsel for respondent No.1. 2. Present Miscellaneous Second Appeal is filed by the defendants questioning the order of the First Appellate Court, whereby it reversed the dismissal of the suit and entertained the amendment application filed by the plaintiffs and remitted the suit to the trial Court for first disposal in accordance with law. 3. Reiterating the grounds urged in the appeal memorandum Sri P.N. Nanja Reddy, learned counsel for the appellants who contend that valuable rights of the defendants with regard to the time bound relief being asked would be put to jeopardy as the First Appellate Court did not observe anything with regard to the rights of the present appellants or the defendant in the suit to oppose the suit on the ground of limitation. - 4 - HC-KAR NC: 2025:KHC:32777 MSA No. 26 of 2018 4. Per contra, the Raja L., learned counsel for the respondent No.1 supports the order of the First Appellate Court and contends that since the amendment is allowed, the First Appellate Court has directed the suit to be tried afresh for the relief of possession as well by allowing the application for amendment of the plaint and sought for dismissal of the appeal. 5. Having heard the arguments of both sides, this Court perused the material on record meticulously. 6. On such perusal of the material on record, it is an admitted fact that suit for declaration and injunction was filed by the respondent in O.S.No.128/2011. Suit on contest came to be dismissed. 7. Being aggrieved by the same, the plaintiff filed an appeal before the First Appellate Court in R.A.No.11/2014. When the said appeal was pending with the permission of Court, plaint was amended by filing an application under Order VI Rule 17 CPC. - 5 - HC-KAR NC: 2025:KHC:32777 MSA No. 26 of 2018 8. It is no doubt true that the appeal is the continuation of the suit and the amendment can be allowed in the appellate stage as well provided, if the amendment sought for would not alter the frame of the suit nor take away the valuable already accrued to the opposite party. 9. The embargo that the amendment should not be allowed after the commencement of the trial as per the amended provisions of the CPC in the year 2002, is not an absolute embargo. In a given case, if the facts and circumstances warrant, the Court has got the power to allow the amendment. Same power can be exercised by the appellant Court as well, as appeal is continuation of suit. 10. It is equally settled principles of law and requires no emphasis that when such amendments are allowed that too in the appellate stage, Courts are bound to protect the rights of the parties get impaired by the proposed amendment. No such observation is forthcoming in the order of the First Appellate Court which is impugned in the second appeal. 11. Taking note of the fact that the suit of the plaintiff came to be dismissed on contest and their relief of declaration - 6 - HC-KAR NC: 2025:KHC:32777 MSA No. 26 of 2018 was also dismissed, introducing the plea for possession by the plaintiffs for the first time before the First Appellate Court by way of an amendment to the plaint, it should be observed that rights of the defendants to urge the question of limitation with regard to the amended prayer shall be kept open, to be canvassed. Further, it is observed that the trial Judge shall frame a proper issue with regard to the relief of possession and with regard to the limitation and then dispose of the suit in accordance with law. 12. With the above observation, following order is passed: ORDER Miscellaneous Second Appeal stands disposed of. Sd/- (V SRISHANANDA) JUDGE MR