- 1 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 100141 OF 2014 (POS) BETWEEN: 1. BALAJI DATTATREYA KUSHTAGI AGE: 48 YEARS, OCC: BUSINESS R/O. C/O. DR. VENKATESH HEBSUR, VEERESHWAR NAGAR, MULGUND ROAD, GADAG. 2. SURENDRA DATTATREYA KUSHTAGI AGE: 51 YEARS, OCC: BUSINESS R/O. NEAR ROTARY CIRCLE, GADAG. 3. LAXMAN DATTATREYA KUSHTAGI AGE: 67 YEARS, OCC: BUSINESS, R/O. JAVALI BAZAR, NEAR OLD DURGA LODGE, GADAG. 4. NARAYANAMURTHY DATTATREYA KUSHTAGI AGE: 55 YEARS, OCC: BUSINESS, R/O. SANKET APARTMENTS, NEAR NANDESHWAR MATH, GADAG. 5. VASUDEV DETTATREYA KUSHTAGI AGE: 39 YEARS, OCC: BUSINESS R/O. NEHRU ROAD, NEAR ROTARY CIRCLE, GADAG. 6. SHIR LAXMI NARAYAN GINNING AND DECARATING FACTORY MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.19 15:12:42 +0530 - 2 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 A PARTNERSHIP FIRM BY ITS PARTNER BALAJI DATTATREYA KUSHTAGI, R/O. NEAR ROTARY CIRCLE, GADAG. …APPELLANTS (BY SRI. S.R. HEGDE, ADVOCATE) AND: VEERSHIVA ADHYANA SAMSTHE GADAG, A PUBLIC TRUST BY ITS SOLE TRUSTEE, (SHRI JAGADGURU TONTAD SIDDALING MAHASWAMIGALAVARU, AGE: 55 YEARS, OCC: DHARMOPADESHA R/O. J.T. MATH, GADAG) DELETED, SINCE DECEASED. (DR. TONTADA SIDDARAMA MAHASWAMIGALAVARU, TONTADARYA SAMSTANA MATHA, DAMBAL-GADAG, AGE: 55 YEARS, OCC: DHARMOPADESHA, R/O: J.T.MATH, GADAG-582101.) …RESPONDENT (BY SRI. C.S. SHETTAR, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.24/2007 DATED:21.12.2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE GADAG, FILED AGAINST THE JUDGMENT AND DECREE IN O.S.NO.53/2004 DATED 23.12.2006 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), GADAG AND ETC.,. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellants have preferred this appeal against the Judgment and Decree dated 21.12.2013 passed in R.A.no.24/2007 by the Additional Senior Civil Judge, Gadag (for short, ‘the first appellate Court’). 2. This Court has admitted regular second appeal by the order dated 11.09.2025 on the following substantial questions of law : “i. Whether the first appellate Court has committed an error in not providing opportunity to the defendants to amend the written statement after allowing I.A.III filed under Order-VI Rule-17 of CPC? ii. What order? 3. The first appellate Court has framed the points for consideration, in which point No.1 is, whether the application under Order-VI Rule 17 of the CPC filed by the appellants/defendants for amendment of written statement deserves to be allowed? - 4 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 4. Both advocates have fairly submitted that the first appellate Court has allowed I.A.III filed under Order-VI Rule-17 of CPC, however, it had not provided an opportunity to the defendants to amend the written statement and straightaway dismissed the appeal, which is not correct. 5. In paragraph No.19 of the Judgment dated 21.12.2013 passed in R.A.No.24/2007 by the first appellate Court, it is observed as under : “19. Point No.1:- It is pertinent to note that, the appellants/defendants have filed I.A.No.3 U/o.6 R.17 of CPC seeking permission to amend the written statement as proposed in the I.A. with regard to the limitation and maintainability of suit. In the accompanying affidavit, the applicant has stated that the present appeal is a continuation of the suit since it being the first appellate Court, the question of fact as well as law are to be considered by the Court. After filing the appeal he has been advised by his counsel that written statement require certain amendments. The proposed amendment will not take any right, if any accrued to the plaintiff/trust. There is no bar to take the new pleadings and defence. The amendment sought by him is not hit by the Limitation, it will not change the nature of the case. The proposed - 5 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 amendment is necessary for judicious and effective decision. Hence, prayed to allow the appeal. The learned counsel for the appellants/defendants relied the decision reported in AIR 2008 Supreme Court 2839 in the case of N.E. Railway Administration Vs. Bhagvan Das, wherein it was held that the amendment of pleading permissible even at appellate stage. Also relied another decision reported in AIR 2007 SC 1663 in case of Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors., wherein it was held that, Amendment of written statement-Substitution of defence or taking of inconsistent decision plea through amendment-Permissible Another decision reported in AIR 2008 KLJ 123 in case of Ryaz Ahmed and others Vs. Lalith Kumar Chopra Builders, Bangalore wherein it was held that Court should allow amendment necessary for determining real question in controversy between parties, provided it does not cause injustice or prejudice to other side-Merits of proposed amendment, not to be gone into at stage of allowing amendment. 20. Per contra, it is contented by the respondent that the proposed amendment is not necessary. The contents of the application and affidavit are not true and correct. That the Code of Civil Procedure is amended in the year 2002. That the amendment application cannot be entertained after the commencement of the trial unless the application satisfy the court that such an applicant in spite of due diligence could not seek such amendment before the commencement of trial. That the jurisdiction of the Court for seeking amendment cannot be invoked unless - 6 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 such an explanation, proper and sufficient are given. The Trial Court already concluded the matter, the, proposed amendment is not necessary. Hence, prayed to dismiss the application since it is filed to protract the proceedings. 21. It is pertinent to note that, the Hon'ble High Court of Karnataka in Misc. Second Appeal No.543/2012 decided on 31st January 2013, wherein it was held that, no fault can be found with the first appellate Court for allowing such an application before the first appellate Court. Therefore, it can be said that the proposed amendment in respect of limitation and maintainability of suit can be raised at any time and does not required any evidence since parties have already adduced the evidence. Therefore, the application filed by the defendants for amendment of written statement deserves to be allowed. Hence I answered point No.1 in the affirmative.” 6. It is also relevant to mention as to the order portion of the Judgment of the first appellate Court, which is as under: “1. I.A. No.III filed by the appellants/defendants U/o.6 Rule 17 of CPC is allowed. 2. The present Regular Appeal is dismissed without costs. - 7 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 3. The judgment and decree dated 23.12.2006 in O.S.No.53/2004 passed by the Prl. Civil Judge, Gadag is confirmed. Draw decree accordingly. Return the records to the trial court. File be consigned to the record room.” 7. A perusal of the above said order passed by the first appellate Court, it is crystal clear that it had allowed I.A.No.III filed under Order-VI Rule 17 of CPC. After allowing the application, the first appellate Court has not provided an opportunity to the defendants to amend the written statement as sought for in I.A.No.III. When the first appellate Court has allowed the amendment application, it is the duty of Court to provide opportunity to the parties to amend the written statement and provide an opportunity to the other side to file re-joinder, if any, and thereafter, proper issues have to be framed, if necessary and proceed with the case in accordance with law. The first appellate Court has not followed the above procedure, which is not - 8 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 sustainable under law. Hence, I answer substantial question of law No.(1) in the ‘affirmative’. 8. For the aforesaid discussions and reasons, I proceed to pass the following : ORDER (i) Appeal is allowed. (ii) The Judgment and Decree dated 21.12.2013 passed in R.A.No.24/2007 by the Additional Senior Civil Judge, Gadag is set aside. (iii) The matter is remanded back to the Additional Senior Civil Judge, Gadag with a direction to provide an opportunity to the defendants to amend the written statement as per the order passed on the application filed under Order VI Rule 17 of the CPC. Thereafter, the first appellate - 9 - HC-KAR NC: 2025:KHC-D:12125 RSA No. 100141 of 2014 Court shall proceed with the case in accordance with law. (iv) Both parties are directed to appear before the first appellate Court without seeking any further notice on 03.11.2025. (v) Send a copy of this Judgment along with TCR to the first appellate Court. Sd/- (G BASAVARAJA) JUDGE CKK LIST NO.: 1 SL NO.: 2