- 1 - HC-KAR NC: 2025:KHC-D:9560 WP No. 103938 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.103938 OF 2025 (GM-CPC) BETWEEN: MARUTI S/O. NAGAPPA SAVALEKAR, AGE: 61 YEARS, OCC. AGRICULTURE, R.O. LAXMI NIVAS, MOODALAGI, TQ. MOODALAGI, BELAGAVI-591312. …PETITIONER (BY SRI. SANKET S. AMBALI, ADVOCATE) AND: ARJUNSA S/O. CHANDUSA DONGADI, AGE: 64 YEARS, R/O. LAXMI NAGAR, MUDALAGI, TQ. MOODALAGI, BELAGAVI-591312. …RESPONDENT (BY SRI. MAHESH N. MUNDINAMANI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 23.04.2025 ANNEXED AS ANNEXURE-A, CONSEQUENTLY ALLOW THE APPLICATION UNDER ORDER VI RULE 17 OF CPC BEARING I.A. NO. II IN O.S. NO. 141/2019 PENDING BEFORE THE LD. CIVIL JUDGE AND JMFC, MUDALAGI AND PERMIT THE PETITIONER/PLAINTIFF TO AMEND THE PLAINT AS PER PROPOSED AMENDMENT, AND/OR. 2. MAY PASS ANY OTHER ORDER(S)/DIRECTION(S) THE HON’BLE COURT DEEMS FIT IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:9560 WP No. 103938 of 2025 THIS PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking for the following reliefs: 1. Issue writ in the nature of certiorari/order/direction of appropriate nature and set aside the impugned order dated 23.04.2025 annexed as Annexure-A, consequently allow the application under order VI rule 17 of CPC bearing I.A. No. II in O.S. No. 141/2019 pending before the Ld. Civil Judge and JMFC, Mudalagi and permit the petitioner/plaintiff to amend the plaint as per proposed amendment, and/or. 2. May pass any other order(s)/direction(s) the Hon’ble court deems fit in the interest of justice and equity. 2. The suit for permanent injunction having been filed by the petitioner. The petitioner had filed an application under Order VI Rule 17 of the Code of Civil Procedure (for short ‘CPC’) seeking an amendment to change the measurement from 2.7 feet to 5.7 feet insofar as the passage is concerned. - 3 - HC-KAR NC: 2025:KHC-D:9560 WP No. 103938 of 2025 The said application, having been opposed by the defendant, was rejected by the trial Court. It is challenging the same; the petitioner is before this Court seeking the aforesaid reliefs. 3. Normally, amendments are required to be allowed so long as they do not change the nature or character of the suit and or do not cause prejudice to the defendant. 4. In the present case, what has been sought to be amended is the measurement of the passage from 2.7 to 5.7 on the ground that there was a typographical error and a clerical mistake. The said amendment, even if allowed, will not change the nature or character of the suit. Insofar as the prejudice is concerned, merely because an amendment is made from 2.7 to 5.7, it would not mean that the existence of the passage has been established by the plaintiff. It is for the plaintiff, on - 4 - HC-KAR NC: 2025:KHC-D:9560 WP No. 103938 of 2025 the basis of the averments brought on record by way of amendment, to prove and establish that the passage measures 5.7 feet. The trial Court has completely misconstrued itself and has decided the application under Order VI Rule 17 of CPC, as if the suit were being decided, the application having been rejected on the grounds that sufficient documents and proof have not been placed on record. 5. The proof of the allegations or averments, would have to be considered during the course of trial, and not while considering the application for amendment. So long as the application satisfies the requirement of Order VI Rule 17 of CPC, such a requirement of proof cannot be imposed on the applicant. As such, I pass the following; ORDER i. The writ petition is allowed. ii. A certiorari is issued, the order dated 23.04.2025 at Annexure-A, is set-aside. - 5 - HC-KAR NC: 2025:KHC-D:9560 WP No. 103938 of 2025 Consequently, I.A.No.II filed under order VI Rule 17 of CPC., in O.S.No.141 of 2019, is allowed. iii. Learned counsel for the petitioner to carryout the necessary amendment and file the amended plaint before the trial Court within a period of 15 days from today. iv. Needless to say, the respondent would have an opportunity to file his additional written statement towards the amendment allowed insofar as the amendment carried out to the plaint is concerned within a period of 30 days thereafter. SD/- (SURAJ GOVINDARAJ) JUDGE AM/- CT:PA LIST NO.: 1 SL NO.: 74