- 1 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 17748 OF 2023 (GM-CPC) BETWEEN: SMT. C. N. LAKSHMI DEVI W/O S.P. NANJUNDAIAH AGED ABOUT 82 YEARS R/AT NO.6, SRI LAKSHMI 3RD CROSS, 3RD STAGE BASAVESHWARANAGARA BENGALURU REPRESENTED BY HER GPA HOLDER SMT. SHAHSHIKALA S.N. W/O HARSHA.T.N. AGED ABOUT 47 YEARS R/AT NO.6, SRI LAKSHMI 3RD CROSS, 3RD STAGE BASAVESHWARANAGARA BENGALURU - 560 096. …PETITIONER (BY SRI NARASIMHARAJU, ADV.) AND: 1. SRI M. GANGADHAR SINCE DEAD BY HIS LRS SMT. NANJAMMA W/O LATE M GANGADHAR AGED ABOUT 55 YEARS R/AT NO.49/49, 3RD CROSS PIPELINE ROAD SALLAPURADAMMANA BADAVANE SUNKADAKATTE, MAGADI ROAD BENGALURU - 560 096. 2. SRI LAKSHMI NARAYAN S/O LATE M GANGADHAR AGED ABOUT 34 YEARS Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 R/AT NO.49/49, 3RD CROSS PIPELINE ROAD SALLAPURADAMMANA BADAVANE SUNKADAKATTE, MAGADI ROAD BENGALURU - 560 096. 3. SMT. PREMA KUMARI D/O LATE M GANGADHAR AGED ABOUT 32 YEARS R/AT NO.49/49, 3RD CROSS PIPELINE ROAD SALLAPURADAMMANA BADAVANE SUNKADAKATTE, MAGADI ROAD BENGALURU - 560 096. 4. SRI K.R. RANGANATH S/O ANJANAPPA AGED ABOUT 60 YEARS R/AT HOUSE NO. 9-B, 6TH CROSS, 9TH MAIN ROAD MAHALAKSHMI LAYOUT BENGALURU - 560 086. 5. SRI B.S. KRISHNA MURTHY S/O SUBBAIAH AGED ABOUT 48 YEARS R/AT NO.214, 11TH CROSS HMT LAYOUT, NAGASANDRA POST BENGALURU - 560 073. 6. SRI HANUMANTHAIAH S/O NARASAPPA AGED ABOUT 44 YEARS R/AT SUNKADAHALLI VILLAGE KOLALA POST, KOLALA HOBLI KORATAGERE TALUK TUMKUR DISTRICT. …RESPONDENTS (BY SRI R. KARTHIK, ADV., FOR SRI B.T. INDUSHEKAR, ADV., FOR R-1 TO R-3; SRI B.K. CHANDRASHEKAR, ADV., FOR R-5 & R-6; V/O/D 17.03.2025, SERVICE OF NOTICE TO R-4 IS D/W) - 3 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 THIS W.P. IS FILED PRAYING TO QUASH THE ORDER DTD. 03.08.2023 PASSED BY THE XXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-38), BENGALURU CITY PASSED ON I.A. NO.1/2023 UNDER ORDER 6 RULE 17 R/W 151 OF CPC IN O.S.NO.4649/2009. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Articles 227 of the Constitution of India is filed by the plaintiff with a prayer to set aside the order dated 03.08.2023 passed by the Court of XXXVII Addl. City Civil & Sessions judge, Bengaluru City on I.A.No.1 of 2023 filed under Order VI Rule 17 r/w Section 151 of CPC in O.S.No.4649/2009. 2. Heard the learned counsel appearing for the parties. 3. Suit in O.S.4649/2009 is filed by the petitioner herein seeking the relief of declaration and permanent injunction. In the said suit, I.A.No.1/2023 was filed on behalf of the petitioner under Order VI Rule 17 R/w Section 151 of CPC with a prayer to amend the plaint by incorporating proposed paragraph nos.3(a) and 3(b) in the plaint, after paragraph no.3. The said application was opposed by defendant - 4 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 no.1(a) to 1(c) by filing objection. The Trial Court vide the order impugned has rejected the said application and being aggrieved by the same, the petitioner / plaintiff is before this Court. 4. Learned counsel for the petitioner submits that the plaintiff has purchased the suit schedule property under a registered sale deed dated 22.07.2013. The original of the GPA and affidavit, which were executed by the vendor of the plaintiff was lost and there is a specific mention to the said fact in the plaint. Subsequently, the plaintiff has filed an application before the Trial Court to produce Xerox copy of the GPA and affidavit as secondary evidence and the said application has been allowed by the Trial Court, which was unsuccessfully challenged before this Court by the contesting defendants. He submits that proposed amendment in paragraph no.3(a) and 3(b) of the application in I.A.No.1/2023 relates to the manner in which aforesaid two documents were lost and the proposed amendment is necessary for the purpose of laying down the foundation to produce phtostat copy of the said document as secondary evidence. No hardship would be caused to other - 5 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 side, if the proposed amendment is allowed. He submits that neither the nature of suit nor the cause of action will change, if the proposed amendment is allowed. He accordingly, prays to allow the petition. 5. Per contra, learned counsels for respondents have opposed the prayer made in the petition. They submit that, plaint was amended multiple times and the proposed amendment was not brought on record at any point of time. Now, only to fill up lacuna an attempt is made by the petitioners when the suit is at the stage of recording defendants' evidence. They submit that in the original plaint when there is no mention about lost of aforesaid documents and the same is only an afterthought. The Trial Court having appreciated all these aspects of the matter has rightly rejected the application. Accordingly, they pray to dismiss the petition. 6. The copy of the amended plaint in O.S.No.4649/2009 is produced before this Court at Annexure-B to the writ petition. In paragraph no.2 of the plaint there is a specific statement that original GPA dated 13.09.1983 was lost and only Xerox copy of GPA is available with the plaintiff. - 6 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 According to the plaintiff her vendor had executed GPA dated 13.09.1983 and an Affidavit in favour of one Kunnaiah S/o Rangaiah, who had executed sale deed dated 22.09.1983 in favour of plaintiff. For the purpose of permitting the plaintiff to produce photostat copy of aforesaid GPA and Affidavit said to have been executed by her vendor, she had filed applications before the Trial Court in O.S.No.4649/2009 and the said applications were allowed by the Trial Court on 02.06.2023 and the plaintiff was permitted to lead secondary evidence in respect of aforesaid two documents subject to laying sufficient foundation why she could not produce primary evidence in respect of those documents . The said order passed by the Trial Court was unsuccessfully challenged by the contesting defendants before this Court in W.P.No.12191/2023, which was dismissed on 15.06.2023. 7. The application in I.A.No.1/2023 was subsequently filed on behalf of the plaintiff on 19.07.2023 before the Trial Court seeking permission of the Trial Court to amend the plaint by incorporating paragraph no.3(a) and 3(b) in the plaint. The proposed paragraph no.3(a) and 3(b) reads as follows: - 7 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 "3(a) It is submitted that, deceased Gangadharaiah has executed General Power of Attorney dt.13-09-1983 in favour of one Kunnaiah in respect of Site No.2, 7, 10 and 15, which measures East to West 515 Feet and North to South 60 Feet, was, also sworn on totally 30900 Sq.Ft. At the time of executing GPA, an 13-09-1983, which is affidavit contemporaneous with the GPA by accepting consideration for a sum of Rs.1 Lakh. Out of the said sites, the schedule property, which is Site No.7 was sold to the plaintiff by virtue of registered Sale Deed dt.22-09-1983 on the strength of the said power of attorney. At the time of the sale deed, the Kunnaiah has only furnished the Xerox copy of the power of attorney to the plaintiff. After registration of the sale deed, he has retained the original power of attorney in order to execute the sale deed pertains to Site No.2, 10 and 15. Thereafter. Kunnaiah has sold the site No.10 along with site No.9 under the registered sale deed dt.10-10-1983 in favour of one Prabhakar Reddy, S/o. R. Lakshmaiah by using the same power of attorney pertains to Site No.10. 3(b). It is submitted that, after sale of Site No.9 and 10, the plaintiff has demanded the said Kunnaiah to hand over original GPA and an affidavit both dt.13-09- 1983. But, the said Kunnaiah canvassed to the plaintiff that, the said GPA and affidavit both dt. 13-09-1983 were lost subsequently. In view of non-availability of the said GPA and affidavit dt. 13-09-1983, the plaintiff has only retained the Xerox copies of the said documents. After sale of Site No.10 and 15, the plaintiff has verified before the concerned sub-registrar office to testify, whether the original GPA dt. 13-09-1983 is available or not. But, ultimately, even in the sub-registrar office also original GPA and affidavit were not traceable. Subsequently, the plaintiff has made an effort to lodge the complaint against the said Kunnaiah for not handing over the original GPA and an affidavit before the jurisdictional police. But, the jurisdictional police declined to accept the complaint." - 8 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 8. From a reading of the proposed paragraph nos.3(a) and 3(b), it is apparent that the plaintiff has sought to explain about the execution of the aforesaid two documents by her vendor in favour of Kunnaiah and also about the lost of the said document and except the same, no other statement is made in the proposed amendment by the plaintiff. The trial Court has failed to appreciate this aspect of the matter and has erred in rejecting I.A.No.1 of 2023. The proposed amendment will not change the nature of the suit nor it will change the cause of action. 9. The Hon'ble Supreme Court in the case of RAJESH KUMAR AGARWAL & OTHERS V K.K.MODI & OTHERS reported in (2006) 4 SCC 385, in paragraph nos.15, 18 and 19 has observed as follows: "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. - 9 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. 19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case." - 10 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 10. In LIFE INSURANCE CORPORATION OF INDIA VS SANJEEV BUILDERS PRIVATE LIMITED & ANR. - 2022 LiveLaw (SC) 729, the Hon'ble Supreme Court has laid down the parameters for the Courts to follow while considering the application filed under Order VI Rule 17 CPC and it has been held in the said case that, while dealing with the prayer for amendment of pleadings, the Court should avoid a hyper technical approach and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. In the said case, it is also held that the prayer made for amendment should be normally allowed, if the amendment is required for effective and proper adjudication of the controversy between the parties and to avoid multiplicity of proceedings, provided the amendment does not result in injustice to the other side, and the party seeking amendment does not seek to withdraw any clear admission made by the parties which confers a right on the other side. 11. Therefore, I am of the opinion that trial Court was not justified in rejecting I.A.No.1/2023. 12. Accordingly, the following:- - 11 - HC-KAR NC: 2025:KHC:42814 WP No. 17748 of 2023 ORDER (i) Writ petition is allowed. (ii) The order dated 03.08.2023 passed by the Court of XXXVII Addl. City Civil & Sessions judge, Bengaluru City on I.A.No.1 of 2023 filed under Order VI Rule 17 r/w Section 151 of CPC in O.S.No.4649/2009 is set aside and consequently the prayer made in I.A.No.1 of 2023 is allowed subject to payment of cost of Rs.10,000/-, out of which a sum of Rs.5,000/- shall be paid to respondent nos.1 to 3 herein and the remaining amount of Rs.5,000/- shall be paid to respondent nos.4 to 6 herein before the trial Court on the next date of hearing. (iii) Since the suit is of the year 2009, the Trial Court shall make endeavours to dispose of the suit as expeditiously as possible. Pending IAs' do not survive for consideration and the same are accordingly disposed of. Sd/- (S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 32