- 1 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 29TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 104268 OF 2021 (GM-CPC) BETWEEN: GOVARDHAN S/O. SHIVAPPA ODEYAR, A/A: 73 YEARS, OCC: AGRICULTURE, R/O. AJJARANI-581318, TQ. SIRSI, DIST. UTTARA KANNADA. …PETITIONER (BY SRI. VISHWANATH HEGDE, ADVOCATE) AND: 1. SMT. SHARADA CHANDRASHEKHAR A/A: 65 YEARS, OCC: HOUSEHOLD, R/O. VINOD NAGAR, SHIVAMOGGA, DIST. SHIVAMOGGA-577201. 2. PRABHAVATI D/O. VEERABHADRA ODEYAR, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 A/A: 60 YEARS, OCC: HOUSEHOLD, R/O. AJJARANI-581318, TQ. SIRSI, DIST. UTTARA KANNADA. 3. MALLAMMA D/O. VEERABHADRA ODEYAR, A/A: 58 YEARS, OCC: HOUSEHOLD, R/O. AJJARANI-581318, TQ. SIRSI, DIST. UTTARA KANNADA. …RESPONDENTS (NOTICE TO R1 SERVED; NOTICE TO R2 & R3 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 25-9-2018 PASSED BY THE ADDL. CIVIL JUDGE SIRSI, MARKED AT ANNEXURE-A REJECTING IA NO.V FILED IN O.S.NO.200/2012 AND CONSEQUENTLY IA NO.V FILED IN O.S.NO.200/2012 ON THE FILE OF ADDL. CIVIL JUDGE SIRSI, MAY KINDLY BE ALLOWED IN THE INTEREST OF JUSTICE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: “A. Issue a writ of Certiorari quashing the impugned order dated 25-9-2018 passed by the Addl. Civil Judge Sirsi, marked at Annexure-A rejecting IA No.V filed in O.S.No.200/2012 and consequently IA No.V filed in O.S.No.200/2012 on the file of Addl. Civil Judge Sirsi, may kindly be allowed in the interest of justice. B. Issue such other writ or direction as this Hon’ble Court deems fit to serve the ends of justice and equity. C. Cost of the petition be awarded in favour of the petitioner and against the respondent no.1 in the interest of justice.” 2. Sri.Vishwanath Hegde, learned counsel appearing for the petitioner submits that respondent No.1 filed a suit for partition and separate possession and in the said suit the petitioner was arrayed as defendant No.4 and filed a detailed written statement. It is submitted that the petitioner/defendant No.4 filed an application seeking for amendment of the written statement to incorporate certain facts which came to be rejected by the trial Court under the impugned order mainly on two grounds. Firstly, the proposed amendment takes away the - 4 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 admission. Secondly, the proposed amendment would permit the defendant to take an inconsistent plea, which is impermissible. It is submitted that on both the grounds the trial Court has committed an error. In support of his contention he placed reliance on the decisions of the Hon'ble Supreme Court in the case of Baldev Singh and Others v. Manohar Singh and Another1 and in the case of Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others2 and seeks to allow the petition by allowing the proposed amendment. 3. Though notice of this proceedings is served on the other side, they remained absent. 4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record including the judicial pronouncements cited by the learned counsel. I have given my anxious considerations to the submissions advanced. 1 (2006) 6 SCC 498 2 (2007) 5 SCC 602 - 5 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 5. The respondent No.1 filed OS.No.200/2012 in the Court of Additional Civil Judge, Sirsi for relief of partition and separate possession. The petitioner who has been arrayed as defendant No.4 in the aforesaid suit filed a written statement mainly contending that a partition took place in the family of defendant No.4 and his brother Sri.Veerabhadra, the father of the plaintiff, in the year 1978. Defendant No.4 has discharged the loan of the joint family and the plaintiff’s marriage was performed by defendant No.4 as the father of the plaintiff was addicted to alcohol. Further, the plaintiff and defendant Nos.1 and 2 wanted to sell land bearing Sy.No.151 measuring 1 acre and accordingly the plaintiff received Rs.22,000/- and signed the documents along with the other defendants. The records further indicate that the plaintiff examined his side and matter was posted for the defendants’ evidence. Defendant No.4/petitioner filed an application under Order VI Rule 17 seeking proposed amendment of the written statement. The proposed amendment indicates that the suit schedule property is a tenanted land and the same was fallen to the share of the defendant No.4’s father, Sri.Shivappa Wodeyar and he bequeathed the entire property in favour of defendant No.4 as per the registered Will dated - 6 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 16.02.1981. The trial Court considered this proposed amendment and held that it amounts to change in the defence of defendant No.4 in other words amounting to taking inconsistent stand in the suit and also taking out the admissions. The impugned order does not say what exactly are the admissions which would be taken away by defendant No.4 by the proposed amendment. Admittedly, no evidence of the defendants was recorded before the trial Court. It is trite law that the proposed amendment of pleading cannot be allowed liberally once the trial is commenced. However, the said principle is required to be applied taking into account various factors like whether the proposed amendment would cause any prejudice to the other side and whether they are necessary to decide the dispute completely. 6. The Hon’ble Supreme Court in the case of Usha Balashaheb Swami referred supra at paragraph Nos.19 to 21 held as under: “19. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of - 7 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 20. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case (see B.K. Narayana Pillai v. Parameswaran Pillai [(2000) 1 SCC 712] and Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] ). Even the decision relied on by the plaintiff in Modi Spg. [(1976) 4 SCC 320] clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary [1995 Supp (3) SCC 179] . In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi case [1995 Supp (3) SCC 179] as follows: (SCC p. 180, para 3) “3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.” 21. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be - 8 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 permitted to hamper the courts in the administration of justice between the parties. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. [AIR 1957 SC 357] this Court observed “that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event”. In that case this Court also held “that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice”.” 7. The Hon'ble Supreme Court in the case of Baldev Singh referred supra at paragraph Nos.7,8,9,11,16 and 17 held as under: “7. Before we take up this question for our decision, we must consider some of the principles that govern allowing an amendment of the pleadings. 8. It is well settled by various decisions of this Court as well as the High Courts in India that courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung [(1920-21) 48 IA 214 : AIR 1922 PC 249] in which the Privy Council observed: (IA pp. 216-17) “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be - 9 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 substituted for another, nor to change, by means of amendment, the subject-matter of the suit.” (emphasis supplied) 9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. From a bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the court shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the courts from permitting an amendment to be allowed in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, the court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later. 11. A bare perusal of the order rejecting the application for amendment of the written statement indicates that while rejecting the application for amendment of the written statement, the High Court as well as the trial court based their decisions mainly on three grounds. The first - 10 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 ground was that since the appellants had made certain admissions in the written statement, its amendment cannot be allowed permitting the appellants to withdraw their admission made in the same. Secondly, the question of limitation cannot be allowed to be raised by way of an amendment of the written statement and lastly, inconsistent pleas in the written statement cannot also be allowed to be raised by seeking its amendment. 16. This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. In Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & Co. [(1976) 4 SCC 320] this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the trial court had gone wrong in holding that the defendant-appellants are not allowed to take inconsistent pleas in their defence. 17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.” - 11 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 8. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court, I am of the considered view that the trial Court has committed a grave error in recording the finding that the proposed amendment would amount to taking away an admission or making of an inconsistent plea by the defendant in the suit. The Hon'ble Supreme Court in the aforesaid decisions has held that the defendant can take inconsistent pleas in the suit. Insofar as taking out the admissions, by defendant No.4 by way of proposed amendment, I am of the considered view that the trial Court has not stated specifically as to what admissions of defendant No.4 is taken out by way of proposed amendment. The admission in the pleading can be changed as the defendant is permitted to make inconsistent pleas in the proceedings. Hence, change of plea in the written statement by way of proposed amendment cannot be termed as taking away of an admission. Ultimately, the plaintiff has every right to cross examine defendant No.4 on all aspects. Considering the aforesaid facts and also keeping in mind that the proposed amendment would not cause any prejudice to the plaintiff, as the plaintiff is required to establish the fact that the suit schedule properties are the joint family properties and he is a coparcener - 12 - HC-KAR NC: 2025:KHC-D:10990 WP No. 104268 of 2021 and entitled to share in those properties. Considering the aforesaid aspect, I am of the considered view that the proposed amendment sought by defendant No.4 is required to be allowed. Hence, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The impugned order dated 25.09.2018 passed on IA No.5 in OS.No.200/2012 by the Additional Civil Judge, Sirsi is hereby set aside. iii) Consequently, IA.No.5 filed by defendant No.4 under Order VI Rule 17 seeking for amendment to the written statement is allowed. iv) Defendant No.4 shall file the written statement within a period of 3 weeks. v) No orders as to costs. Sd/- (VIJAYKUMAR A.PATIL) JUDGE ABK /CT-AN List No.: 1 Sl No.: 12