- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.24397 OF 2022 (GM-CPC) BETWEEN: SMT C M BHAGYALAKSHMAMMA W/O G M GANGADHARAIAH, AGED ABOUT 59 YEARS R/O AT HOUSE NO. 81-6th CROSS ROAD, MAHALAKSHMI LAYOUT, FURTHER EXTENSION BENGALURU-86. …PETITIONER BY SRI. SAMPATH BAPAT, ADVOCATE) AND: 1 . SRI H K MALLIKARJUNA SINCE DEAD BY LRS 1a) SMT. SHANTHAMMA LATE SRI. H.K MALLIKARJUNA AGED ABOUT 53 YEARS, 1b) SRI. KOUSHALRAM H M S/O LATE SRI. H.K MALLIKARJUNA AGED ABOUT 24 YEARS, 1c) NISCHALRAM S/O LATE SRI. H.K MALLIKARJUNA AGED ABOUT 21 YEARS, ALL ARE RESIDING AT HULIKINTE VILLAGE, KORATAGERE TALUK TUMKUR DISTRICT-572 129. ® - 2 - …RESPONDENTS (BY SRI. M.B. CHANDRACHOODA, ADVOCATE FOR R1 (a TO c) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO QUASH THE ORDER DTD 23.11.2022 ON IA UNDER ORDER VI RULE 17 IN O.S.NO.123/2014 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC TUMKUR, VIDE ANNEXURE-E AND ALLOW IA THE SAID IA PERMITTING AMENDMENT OF PLAINT AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER 1. The present writ petition is filed seeking to issue writ of certiorari to quash the order dated 23.11.2022 on I.A under Order VI Rule 17 of the CPC passed in O.S.No.123/2014, on the file of the learned Senior Civil Judge, and JMFC Tumakur (‘the trial Court’ for short) and further sought to allow I.A permitting amendment of plaint. 2. The petitioner herein is the plaintiff before the Trial Court and the respondent herein is the defendant before the Trial Court. 3. Heard learned counsel appearing on either side. - 3 - 4. The brief facts of the case are that:- The plaintiff instituted a suit in O.S.No.123/2014 seeking relief of declaration that the sale deed dated 31.03.2011 vide Book No.I bearing TMK-1-14309-2010-11 and CD No.TMKD340 registered before the office of Sub- Registrar Tumakur as null and void and for mandatory injunction to restore possession of the suit schedule property. 5. The petitioner submits that the present proceedings arose due to the fraudulent conduct of the respondent. On the date of registration of the sale deed, the respondent issued a Demand Draft (DD) No.105398 dated 31.03.2011 for Rs.5,00,000/- drawn on M/s.Karnataka Bank, Koratagere, in favour of the petitioner. However, when DD was presented for encashment, it was returned with the endorsement “demand draft lost.” On enquiry, the petitioner discovered that the respondent had complained to the bank claiming loss of the DD and directed that payment to be stopped. Despite repeated demands, the respondent refused to pay the balance sale consideration. - 4 - 6. The respondent appeared and filed the written statement denying the averments made by the petitioner. The petitioner thereafter filed an application under Order VI Rule 17 of the CPC seeking amendment of the plaint to insert paragraph 7-A and amend the prayer to claim relief regarding the withholding of Rs.5,00,000/-. 7. The respondent has objected to the IA on the grounds that it is legally and factually untenable, barred by limitation, and filed without due diligence as mandated under the amended CPC. The respondent contends that the affidavit in support of the IA contains false averments and that the proposed amendment introduces a new case, alters the cause of action, and changes the nature of the suit, necessitating a de novo trial, thereby causing serious prejudice and irreparable harm to the LR’s of the defendant. However, the learned Trial Court dismissed the application on the ground that it was belated and filed after commencement of trial. - 5 - 8. It is contended by the learned counsel appearing for the petitioner that the learned Trial Judge committed a grave error in rejecting the I.A solely on the ground of delay, without appreciating that the proposed amendment neither alters the nature of the suit nor prejudices the parties. The amendment is necessary to avoid multiplicity of proceedings and to effectually resolve the dispute between the parties. Further, the observation that the matter pertains to the year 2014 and that allowing the application would lead to protraction is erroneous, as the delay is attributable to both parties having approached this Court twice each since the institution of the suit, and cannot be a ground to reject the application. 9. Aggrieved by the rejection of the amendment application, the petitioner submits that the order has caused serious prejudice. The learned Trial Court erred in dismissing the I.A., leaving the petitioner with no other effective remedy. Hence, the petitioner has preferred this writ petition challenging the order dated 23.11.2022 passed by the learned Senior Civil Judge and JMFC, - 6 - Tumkur, rejecting the I.A. under Order VI Rule 17 in O.S. No.123/2014. 10. In support of his contentions, learned counsel for the petitioner relied on the judgment of Apex Court in the case of Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel reported in (2021) 20 SCC 210. 10. The proviso to Order 6 Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order 6 Rule 17CPC, such an application for amendment can be allowed even after the trial has commenced. In the present case, as observed hereinabove, the factum of actual marriage on 14- 12-2006 came to the knowledge of the appellant wife when the marriage certificate was produced during the cross-examination of the respondent husband and immediately thereafter the application (Ext. 281) for amendment was made. - 7 - 11. It is contended by the learned counsel appearing for the respondent that by an interim order dated 07.12.2022, this Court directed the Trial Court not to pronounce judgment in O.S.No.123/2014. It is asserted that the application for amendment was filed after the conclusion of arguments by both the parties, and no explanation for the inordinate delay was provided in the supporting affidavit. 12. It is contended that the petitioner having voluntarily executed the registered sale deed which recites full receipt of sale consideration and transfer of title, cannot now seek its cancellation. The allegations regarding non-receipt of sale consideration, even if accepted, do not render the suit maintainable, as the petitioner has an alternative remedy. The purchaser had denied all claims in his written statement, and the Trial Court, after framing issues, recording evidence of both sides, and hearing arguments, was set to deliver judgment when this amendment application was belatedly filed. - 8 - 13. It is further urged that the petitioner had earlier approached this Court seeking issuance of summons to a witness, and the writ petition was allowed with a direction to the trial Court to dispose of the suit expeditiously; despite the same, the petitioner continues to delay the proceedings. After the death of the defendant, his legal heirs were brought on record, and the present amendment application was filed when the case was posted for arguments. 14. It is also contended that the cause of action against the deceased defendant cannot be transferred to his heirs, rendering the amendment misconceived. The Trial Court, after considering these aspects, rightly exercised its discretion in rejecting the amendment application. 15. In support of his contentions, learned counsel for the respondent relied on the judgment of Apex Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr LRs and Ors. reported in AIR 2020 SC 3310. - 9 - 29.10. The plaintiffs have averred in the plaint that the period of limitation commenced on 21-11- 2014, when they obtained a copy of the index of the sale deed dated 2-7-2009, and discovered the alleged fraud committed by Defendant 1. The relevant extract from the plaint in this regard is set out hereinbelow: “(7) … Not only that but also, on obtaining the copy of the index of the sale deed of the acts committed by Opponents 1, 4, 5 and on obtaining the certified copy of the sale deed, we the plaintiffs could come to know on 21-11-2014 that, Opponent 1 had in collusion with Opponents 4, 5 mentioned the false cheques stated below in the so-called sale deed with intention to commit fraud and no any consents of we, the plaintiffs have also been obtained in that regard. The said cheques have not been received to we the plaintiffs or no any amounts of the said cheques have been credited in accounts of we the plaintiffs. Thus, the cheques which have been mentioned in the agreement caused to have been executed by Opponent 1, the false cheques have been mentioned of the said amounts. Not only that but also, the agricultural land under the suit had been sold by Opponent 1 to Opponent 2 Dillipbhai Gordhanbhai Sonani and Opponent 3, Laljibhai Gordhanbhai Sonani on 1-4- 2013 for Rs 2,01,00,000 as if the said sale deed was having clear title deeds. On taking out the copy of the said sale deed with seal and signature on 21-11-2014, it could come to the knowledge of we, the plaintiffs. We, the plaintiffs have not done - 10 - any signature or witness on the said agreement. The said agreement is not binding to we, the plaintiffs. Since the said agreement is since null, void and invalid as well as illegal, therefore, no court fee stamp duty is required to be paid by we, the plaintiffs on the said agreement and for that we, the plaintiffs rely upon the judgment of the Supreme Court in Suhrid Singh v. Randhir Singh [Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 : (2010) 4 SCC (Civ) 585] . …” (emphasis supplied) 29.13. The conduct of the plaintiffs in not taking recourse to legal action for over a period of 5 and ½ years from the execution of the sale deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an afterthought. The plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property. 29.14. The plaintiffs have placed reliance on the order of the Collector dated 19-6-2009 with the plaint. The order reveals that the permission was granted subject to the fulfilment of certain conditions. Clause 4 of the permission states that: “(4) The purchaser of the land/property, shall have to make the payment of the price of the land by cheque and its reference shall require to be made in the sale deed.” 29.15. If the plaintiffs had a genuine grievance of non- payment of the balance sale consideration, the plaintiffs could - 11 - have moved for revocation of the permission granted by the Collector on 19-6-2009. Clause (6) of the order provided that: “(6) On making violation of any of the aforesaid terms, the permission shall automatically be treated as cancelled and, separate proceeding shall be taken up for the violation of the terms and conditions.” The plaintiffs did not make any complaint whatsoever to the Collector at any point of time. The conduct of the plaintiffs is reflective of lack of bona fide. 29.16. The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation. Prayer (1) of the plaint reads as: “(1) The suit property being agricultural land of old tenure of Revenue Survey No. 610 whose Block No. is 573 situated at Village Mota Varachha, Sub-District : Surat City, District Surat has been registered by Opponent 1 of this case in Office of the Sub-Registrar (Katar Gam) at Surat vide Sl. No. 5158 in Book No. 1. Since, the same is illegal, void, ineffective and since the amount of consideration is received by the plaintiffs, and by holding that it is not binding to the plaintiffs and to cancel the same, and since the sale deed as aforesaid suit property has been executed by Opponent 1 to Opponents 2, 3, it is registered in the Office of Sub-Registrar, Surat (Rander) on 1-4-2013 vide Sl. No. 443 which is not binding to we, the plaintiffs. Since, it is illegal, void, ineffective and therefore, this Hon'ble Court may be pleased to cancel - 12 - the same and this Hon'ble Court may be pleased to send the Yadi in that regard to the Sub-Registrar, Surat (Karat Gam) and the Sub-Registrar (Rander) in regard to the cancellation of both the aforesaid documents.” 29.17. The plaintiffs deliberately did not mention the date of the registered sale deed dated 2-7-2009 executed by them in favour of Respondent 1, since it would be evident that the suit was barred by limitation. The prayer however mentions the date of the subsequent sale deed i.e. 1-4-2013 when the suit property was further sold by Respondent 1 to Respondents 2 and 3. The omission of the date of execution of the sale deed on 2-7-2009 in the prayer clause, was done deliberately and knowingly, so as to mislead the court on the issue of limitation. 29.18. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15- 12-2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11(d) CPC. 29.19. Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v. Ram Prasanna Singh [Raghwendra Sharan Singh v. Ram Prasanna Singh, (2020) 16 SCC 601 : - 13 - 2019 SCC OnLine SC 372] wherein this Court held that the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed. 29.20. The plaintiffs have also prayed for cancellation of the subsequent sale deed dated 1-4- 2013 executed by Respondent 1 in favour of Respondents 2 and 3; since the suit in respect of the first sale deed dated 2-7-2009 is rejected both under Clauses (a) and (d) of Order 7 Rule 11, the prayer with respect to the second sale deed dated 1-4-2003 cannot be entertained. 16. On hearing the submissions of the learned counsel for both the parties, on perusal of the material on record and the impugned order dated 23.11.2022 passed on I.A. in O.S.No.123/2014 and relying on the above citations, it is observed that in the present case, the amendment sought to the plaint for inclusion of certain facts and circumstances of the case for effective adjudication with regard to the Para 7 and further, sought relief for alternative remedy in the prayer portion incase that the Court may come to a conclusion that the plaintiff is not entitled for the relief of declaration and for mandatory - 14 - injunction as sought in the plaint ie., with regard to the alternative prayer is concerned. In view of the above circumstances, the proviso to Order VI Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced. 17. In view of the above discussions, the present case appears to that the proposed amendment should not change the nature of the suit or the cause of action of the suit and no prejudice would be caused to the respondents in allowing the proposed amendment. Hence, this Court - 15 - intends to interfere in the impugned order dated 23.11.2022 and the same is hereby set-aside. 18. The writ petition is allowed with the following directions; (a) The impugned order dated 23.11.2022 passed on I.A in O.S.No.123/2014 is set-aside. (b) The petitioner is directed to amend the plaint as per I.A. filed under Order VI Rule 17 of CPC. (c) In view of the amendment the defendant is directed to file additional written statement if at all required. (d) The Trial Court is directed to dispose of the suit as expeditiously as possible ie., within a period of six months from the date of receipt of a certified copy of this order. Sd/- (DR. K.MANMADHA RAO) JUDGE GH