- 1 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 104794 OF 2022 (GM-CPC) BETWEEN: JAIBUNNIS ABDUL SAMAD SHAIKH AGE. 63 YEARS, OCC. HOUSEWIFE, R/O. MUSLIM GALLI, SIRSI U.K DISTRICT – 581401. …PETITIONER (BY SRI. LINGESH V. KATTEMANE, ADV) AND: 1. AJIMULLA KALIMULLA RANNAR AGE. 36 YEARS, OCC. BUSINESS R/O. RAJEEVNAGAR, SIRSI U.K DISTRICT – 581401. 2. JAKEER AHMAD S/O MUKABUL AHMADMULLA AGE. 39 YEARS, OCC. BUSINESS R/O. JADE, TQ. SORABA, DIST. SHIMOGA, U.K DISTRICT – 577429. …RESPONDENTS (BY SRI. A.P. HEGDE JANMANE, ADV FOR R2, NOTICE TO R1 IS SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA., PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED 25.05.2022 PASSED BY THE SENIOR CIVIL JUDGE SIRSI IN O.S.60/2020 AND ON I.A. NO.4/2022 VIDE ANNEXURE-J. THIS PETITION, COMING ON FOR PRL. HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This writ petition is filed by the petitioner, challenging the order on I.A.IV dated 25.5.2022, in O.S. No.60/2020, by the learned Senior Civil Judge and Principal JMFC, Sirsi. 2. Brief facts leading rise to the filing of this writ petition are as follows. The petitioner filed a suit, against the respondents in O.S.60/2020 on the file of Senior Civil Judge and Principal JMFC, Sirsi. In the said suit, the petitioner filed an application- I.A.I seeking an order of temporary injunction, restraining the respondents from interfering with the peaceful possession and enjoyment of suit property. The trial Court granted an ad- interim order of temporary injunction. The petitioner also filed I.A.2 seeking an order of temporary injunction, restraining respondent No.2 from alienating or encumbering over the suit schedule property. The trial Court rejected I.A.2. The said order was challenged in MFA No.101392/2021 on the file of this Court. This Court directed the parties to maintain status quo. - 3 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 2.1. The petitioner filed an application-I.A.IV for amendment to the plaint. The said application was opposed by the respondents. The trial Court rejected the application. Hence, this writ petition. 3. Heard learned counsel for the petitioner and the learned counsel for the respondents. 4. The learned counsel for the petitioner submits that the petitioner has filed an application for amendment to the plaint before commencement of the trial. The trial Court could allow the application for amendment, before commencement of the trial. He contends that the trial Court has failed to consider the guidelines issued by the Hon’ble Apex Court in this regard and therefore, it is contrary to the law laid down by the Hon’ble Apex Court. Hence, on these grounds, he prays to allow the writ petition. 5. Per contra, the learned counsel for respondent No.2 submits that there is no cause of action to file the suit for injunction. He submits that if the application for amendment is allowed, it consumes considerable length of time for disposal of - 4 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 suit. Hence, on these grounds, he prays to dismiss the writ petition. 6. Perused the records, and considered the submissions of the learned counsel for the parties. 7. The petitioner filed a suit for permanent injunction. The respondents filed a written statement. The trial Court has not yet commenced the trial. Before the commencement of trial, the petitioner filed an application for amendment to the plaint. The amendment can be allowed before the commencement of trial as per Order VI Rule 17 of CPC. The petitioner, by way of proposed amendment, wanted to explain that due to oversight, the prayer to grant the permanent injunction has not been mentioned and seeks the inclusion of the prayer. 8. As the application for amendment of the plaint is filed, before the commencement of trial, the trial Court has committed an error in rejecting the application filed by the petitioner. The order passed by the trial Court is contrary to the law laid down by the Hon’ble Apex Court. In the case of Life Insurance Corporation of India vs. Sanjeev Builders - 5 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 Private Limited & Anr., reported in 2022 SCC Online SC 1128 where Hon’ble Apex Court in Para 70 held that : “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, - 6 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless 21 (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. - 7 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest - 8 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”. The proposed amendment, neither change the nature of the case nor the cause of action. Hence, the order passed by the trial Court is arbitrary and erroneous. The same is liable to be set aside. 9. Accordingly, I proceed to pass the following : ORDER i) Writ petition is allowed; ii) The impugned order on I.A.IV passed by the trial Court in O.S.No.60/2020 is set aside; iii) The application filed by the petitioner in I.A.IV is allowed, subject to the payment of cost of Rs.10,000/- payable by the petitioner to the respondents on the next date of hearing. - 9 - NC: 2025:KHC-D:2867 WP No. 104794 of 2022 iv) The petitioner to carry out amendment in the plaint. Sd/- (ASHOK S. KINAGI) JUDGE rs CT: BSB List No.: 1 Sl No.: 46