- 1 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 5794 OF 2020 (GM-CPC) BETWEEN: N. V. GIRISH S/O SRI VENKATESHAIAH AGED ABOUT 53 YEARS, R/AT NAGUVANAHALLI VILLAGE, SRIRANGAPATNA TALUK, MANDYA DISTRICT - 571 438. …PETITIONER (BY SRI. DESHRAJ, ADVOCATE) AND: N. R. MALLIKARJUNA S/O LATE K.RAMEGOWDA AGED ABOUT 47 YEARS, R/AT NAGUVANAHALLI VILLAGE, SRIRANGAPATNA TALUK MANDYA DISTRICT - 571 438. …RESPONDENT (BY SRI. AKARSH KUMAR GOWDA, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE ORDER DATED 26.02.2020 PASSED BY THE ADDL. 2ND CIVIL Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 JUDGE AND JMFC, MYSURU IN O.S.NO.718/2009, PRODUCED AT ANNEXURE-E AS ILLEGAL AND QUASH THE SAME. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER In this petition, the petitioner is seeking for the following relief: "(i) DECLARE that the order dated 26.02.2020 passed by the Addl. 2nd Civil Judge & JMFC, Mysuru, in O.S.No.718/2009, produced at ANNEXURE-E as illegal and quash the same; (ii) ALLOW this writ petition with costs; and (iii) GRANT any other relief/s as this Hon'ble Court deems fit to grant in the interests of justice." 2. Heard Sri.Deshraj, learned counsel appearing for the petitioner submits that the respondent has filed a suit for declaration that he is the absolute owner in possession and enjoyment of the suit schedule property and declared that the entry in Record of Rights, Tenancy, and Crops (hereinafter referred to as 'RTC' for short) in - 3 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 respect of the suit schedule property for the extent of 5 guntas in the name of the defendant is not correct and a consequent plea for permanent injunction. 3. It is submitted that the petitioner/defendant has filed a detailed written statement denying the averments made in the plaint. The parties adduce their evidence. The matter was posted for arguments at the time the respondent/plaintiff filed an application seeking for amendment of the plaint. It is submitted that with the proposed amendment the respondent/plaintiff intends to seek additional prayer that the exchange deed dated 20.07.1928 in respect of survey No.123/1 of Kalasthavadi Village, Kasaba Hobli, Mysore Taluk, is not valid, not acted upon and does not bind the plaintiff and the plaintiff's scheduled property in any manner. Further amendment is sought for the addition of prayer at para (b) to order for cancellation of entry made in the revenue records effected in the name of N.V.Girish to an extent of unidentified 5 guntas. - 4 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 4. It is also submitted that the trial Court allowed the said application by recording the reason that the suit is an old one and at the fag-end of the proceedings an application is filed. There is an averment in the plaint with regard to the prayer sought in the proposed amendment already in the plaint and to provide one opportunity to the plaintiff, the application came to be allowed. The approach of the trial Court is contrary to the settled position of law, as the proposed amendment changes the cause of action to the suit. The proposed amendment is barred by the law of limitation and filed at the fag-end of the proceedings i.e., at the time of argument, which is impermissible. None of the aspects have been considered by the trial Court under the impugned order and the application was allowed. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of DINESH GOYAL @ PAPPU VS SUMAN AGARWAL (BINDAL) & OTHERS1, Special Leave Petition (Civil) 1 SLP (C) 30324/2019 - 5 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 No.30324/2019 disposed of on 24.09.2024, case of VIDYABAI AND OTHERS VS PADMALATHA AND ANOTHER2, and the decision of this Court in the case of P.RAMAPRASAD VS THYAGARAJ R3 and seeks to allow the petition. 5. Per contra, Sri.Akarsh Kumar Gowda, learned counsel appearing for the respondent/plaintiff supports the impugned order of the trial Court and submits that the plaintiff was unaware about the exchange deed dated 20.07.1928. After a lapse of 71 years, based on the said deed, the petitioner approached the Jurisdictional Tahasildar and sought for entry in the revenue records. Which ultimately culminated into the orders of this Court in W.P.No.18673/2001 and this Court granted liberty to the petitioner to challenge the said deed, which compelled the petitioner to seek amendment of the plaint. 2 (2009) 2 SCC 409 3 LAWS (KAR)-2023-8-966 - 6 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 6. It is further submitted that the proposed amendment would not change the nature of the suit nor the scheme of the suit and no prejudice would be caused to the other side. It is submitted that the question of the limitation would not arise, as the plaintiff came to know about the deed during the revenue proceedings. The prayer is not to challenge the exchange deed but is to seek that the alleged exchange deed does not bind the plaintiff. Considering these aspects, the trial Court allowed the application, which does not call for any interference. Hence, he seeks to dismiss the petition. 7. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent and meticulously perused the materials available on record. 8. The respondent has filed a suit in O.S.No.718/2009 before the Additional II Civil Judge and JMFC, Mysuru, seeking relief of declaration that the plaintiff is the absolute owner in possession, occupation - 7 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 and enjoyment of the plaint schedule property and further relief of declaration that the entry made in RTC with respect to the suit schedule property to an extent of unidentified 5 guntas in the name of the defendant is not correct and a consequent plea for permanent injunction. The suit schedule property is survey No.123/1, measuring 1 acre 36 guntas with Chakbandi, as provided in the plaint. 9. It is also submitted that the petitioner has filed a detailed written statement denying the averments made in the plaint and also referred to the various proceedings entered between them. The paragraph No.11 of the written statement clearly makes reference to the exchange deed dated 20.07.1928. The respondent/plaintiff made the assertion in the affidavit filed along with the application seeking for amendment that after 71 years the exchange deed was brought to light by the petitioner in the revenue proceedings. It is an admitted fact that the revenue proceedings were initiated by the petitioner in the year - 8 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 1999, based on the subject exchange deed. In other words, in the year 1999, the respondent/plaintiff came to know about the exchange deed relied on by the petitioner. The revenue proceedings ultimately ended before this Court in W.P.No.18673/2001. This Court taking note of the rival contentions vide order dated 31.05.2006, quashed the order of the Deputy Commissioner by directing the Revenue Authorities to confirm the revenue entry in respect of survey No.123/1 to an extent of 5 guntas in the name of the petitioner. While observing the same, this Court recorded that the exchange deed, which is a registered document and the aforesaid finding will be subject to any proceeding that may be taken by the petitioner therein regarding the validity of the said deed. It is contended that based on the said liberty by the observation of the Court, the application is filed. 10. In my considered view such a contention cannot be accepted for the simple reason that the registered exchange deed dated 20.07.1928 was referred to by the - 9 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 petitioner in the written statement, which was filed in the year 2015 and also the subject matter in the proceedings before the Revenue Authorities initiated in the year 1999. The trial Court without considering any of the aspects and the aspect of limitation on incorrect reasoning, allowed the application. It is trite law that the amendment is required to be allowed as a matter of course if it is filed in a pre- trial stage. Proviso to Order VI Rule 17 of Code of Civil Procedure (hereinafter referred to as 'CPC') creats embargo to trial Court to consider the application for amendment unless the party seeking amendment establish that there was due diligence. In the case on hand, there is absolutely no reason whatsoever in the affidavit for the delay in seeking such amendment. In the absence of any such explanation and having knowledge with regard to the exchange deed, the respondent has slept over the matter and filed an application for amendment of the plaint when the matter is posted for arguments. The Hon'ble Supreme Court in the aforesaid decision has laid down the law as to - 10 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 how the application for amendment is required to be considered. The trial Court has not appreciated the aspect of limitation and also the fact that it also changes the cause of action, as the cause of action shown in the plaint is on 10.09.2009. 11. Considering the aforesaid aspect, I am of the considered view that the trial Court committed an error in allowing the application at the fag-end of the proceedings, ignoring the aspect of limitation, due diligence and also the fact that the cause of action in the suit would change. In effect, the scheme of the suit would change. Hence, it is a fit case to be allowed for setting aside of the impugned order. 12. For the aforesaid reasons, I proceed to pass the following: ORDER i. The writ petition is hereby allowed. - 11 - HC-KAR NC: 2025:KHC:28327 WP No. 5794 of 2020 ii. The impugned order dated 26.02.2020 passed on I.A.No.6 in OS.No.718/2019 by the learned Additional II Civil Judge and JMFC, Mysuru, is set aside. iii. Consequently, I.A. filed by the respondent/plaintiff under Order VI Rule 17 of CPC is rejected. iv. No Order as to cost. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BKN/List No.: 1 Sl No.: 44