- 1 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 8494 OF 2023 (GM-CPC) BETWEEN: 1. KEMPANNA SINCE DEAD BY LRS: SMT. LAKKAMMA W/O LATE KEMPANNA, AGED ABOUT 76 YEARS, 2. SMT GANGAMMA W/O ANDANAPPA, D/O LATE KEMPANNA, AGED ABOUT 46 YEARS, 3. GANGADHARAIAH S/O LATE KEMPANNA, AGED ABOUT 43 YEARS, PETITIONER NOS.1 TO 3 ARE AGRICULTURISTS R/O RAMANAPALYA GALAGANAHALLI MAJARE HEBBURU HOBLI TUMAKURU TALUK AND DIST.=572 120. 4. SMT. BYRAMMA W/O BYRAPPA, D/O LATE KEMPANNA, AGED ABOUT 42 YEARS, R/O HONNUDIKE, GULURU HOBLI, TUMAKURU TALUK AND DISTRICT-572122 Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 5. SMT KEMPAKKA W/O NAGARAJU, D/O LATE KEMPANNA, AGED ABOUT 37 YEARS, R/OF BOMMANAHALLI, KASABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572126. …PETITIONERS (BY SRI.A.V.GANGADHARAPPA, ADVOCATE) AND: 1. NARASEGOWDA S/O LATE AJJAPPA @ APPEGOWDA, AGED ABOUT 51 YEARS, 2. BORAIAH @ BOREGOWDA S/O LATE AJJAPPA @ APPEGOWDA, AGED ABOUT 61 YEARS, BOTH ARE R/OF RAMANAPALYA, HEBBURU HOBLI, TUMAKURU TALUK AND DISTRICT-572120 …RESPONDENTS (BY SRI.MARUTI K.NAIK, ADVOCATE FOR SRI.NAIK VENKATRAMAN NAGAPPA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 14/03/2023 PASSED BY THE COURT OF III ADDL. CIVIL JUDGE AND JMFC AT TUMAKURU ON I.A. - 3 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 IN O.S.NO. 576/2007 CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE-F AND CONSEQUENTLY ALLOW THE APPLICATION, CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE-D, ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 14.03.2023 passed in O.S.No.576/2007 by the III Additional Civil Judge and JMFC, Tumakuru (hereinafter referred to as the ‘Trial Court’ for short). 2. Sri.A.V.Gangadharappa, learned counsel appearing for the petitioners submits that respondent No.1 herein has filed a suit for partition against the father of the petitioners. In the said suit, the father of the petitioners has filed a written statement and after his death, the petitioners were brought on record, and thereafter they - 4 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 have filed an application seeking amendment of the written statement, which came to be rejected by the Trial Court. It is submitted that the proposed amendment is nothing but deletion of paragraph Nos.9 to 11 in the written statement by substituting the same with a detailed narration of the factual matrix, stating that the property is divided among the family by way of Panchayath Parikath. It is further submitted that the proposed amendment would not change the defence set out by the original defendant No.2. However, the Trial Court has incorrectly understood that there is no due diligence on the part of the legal representatives in seeking the amendment and that the application for amendment is filed at a belated stage, and proceeded to reject the application. 2.1. It is further submitted that the question of due diligence by the legal representatives would not arise, as the original defendant No.2, who has died, had filed the written statement and on noticing certain lacuna after the legal representatives, who came on record, sought - 5 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 amendment to the written statement. Hence, the question of due diligence would not arise. 2.2. It is also submitted that the petitioners, who are the legal representatives of defendant No.2, can always file additional written statement and that the present application for amendment is nothing but a kind of an additional written statement. Taking their stand in the matter, which is required to be considered, it is contended that the plaintiff has every right to deny or contest the proposed amendment by filing a rejoinder or by way of adducing evidence. Hence, he seeks to allow the amendment of the written statement by allowing the writ petition. 3. Per contra, Sri. Maruti K. Naik, learned counsel on behalf of Sri. Naik Venkatraman Nagappa, learned counsel appearing for respondent No.1/plaintiff supports the impugned order of the Trial Court and submits that the proposed amendment is not an elaboration of facts, but it - 6 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 is clearly taking away the admissions made in the pleadings which were on record by defendant No.2. It is submitted that the present petitioners, being the legal representatives of the original defendant No.2 cannot be allowed to take their own independent stand by way of amendment to the written statement. 3.1. It is further submitted that the present application seeking amendment was filed without any due diligence and with delay, as defendant No.2(c) i.e., petitioner No.3 herein has entered the witness box, adduced the evidence as DW1 on behalf of the original defendant way back in the year 2009 and thereafter, the legal representatives of defendant No.2 were brought on record on 19.02.2017 and the present application seeking amendment of the written statement is filed on 23.08.2022, when the matter was posted for arguments of the plaintiff, which is impermissible. - 7 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 3.2. In support of his contentions, he has placed reliance on the following citations: i) Vidyabai and Others vs. Padmalatha and Another1 ii) Amitabh Kumar Gupta vs. Awadh Bihari Nigam2 iii) Mahendra Pratap Singg vs. Rama Raman and Others3 iv) Smt.Seeta and Others Vs. Smt.Laxmi4 v) Anantram Bhotra Vs. Pratima Bhotra and Others5. 4. I have heard the arguments of the learned counsel for the petitioners, learned counsel appearing for respondent No.1 and meticulously perused the materials available on record. 5. Respondent No.1 filed O.S.No.576/2007 for relief of declaration of plaintiff's title and possession in respect of the suit schedule properties and consequential 1 (2009)2 SC 409 2 2023 SCC Online All 4798 3 [2024 SCC Online All 2510] 4 [W.P.No.102555/2025 (GM-CPC)] 5 [CMP No.1247/2022] - 8 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 relief of injunction or in the alternate, if it is found that the plaintiff is not in possession of the suit schedule property, they sought for the relief of recovery of possession. Defendant Nos.1 and 2 have filed a written statement. Defendant No.2 has filed a written statement on 18.11.2008. The records indicate that the Trial Court, based on the pleadings, framed the issues. The respondent has adduced the evidence and on behalf of defendant No.2, petitioner No.3 has adduced the evidence as DW1 and produced the documents on 12.02.2009. It is required to be noticed here that petitioner No.2 herein deposed before the Trial Court on behalf of the original defendant. The records indicate that defendant No.2 has died and thereafter an application under Order 22 Rule 4(2) of CPC was filed to bring legal heirs of Defendant No.2 on record, which came to be allowed on 19.02.2017. Accordingly, the legal heirs of Defendant No.2 were brought on record. It is also to be noticed that petitioner No.3, one of the legal representatives has filed an - 9 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 application under Order 6 Rule 16 read with Rule 17 of CPC to amend the written statement. The proposed amendment sought by the one of the legal representatives of the original defendant No.2 indicate that the legal representative is seeking to delete paragraph Nos.9 to 11 of the original written statement by substituting paragraph No.9 referred in the application. The affidavit accompanying the application indicates that the amendment, which is now sought, would not change the nature of the suit and would not change the cause of action. It is further submitted that after the demise of his father, he has instructed his counsel and handed over the Panchayath Parikath and agreement to his previous counsel and it is stated that his previous counsel could not file the application for amendment. Hence, the present application is filed. 6. It is to be noticed that the written statement filed by defendant No.2 on 18.11.2008 indicates certain factual aspects with regard to the physical possession of - 10 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 certain properties by the parties to the proceedings. The paragraph No.11 of the written statement indicates that along with the written statement, the original defendant has filed sketch. The proposed amendment now sought is based on the panchayat parikath said to have been entered between the parties on 02.02.1979 and 02.02.1969. The Trial Court, considering the rival submissions and the law on point has rejected the application. It is to be noticed that the Trial Court while rejecting the application has clearly recorded the finding that the proposed amendment is nothing but a new and independent stand taken by the legal representatives of the original defendant and by virtue of the proposed amendment, the admissions of defendant No.2 are taken away. The Trial Court has also observed that there is no due diligence on the part of the applicant in seeking the amendment. The perusal of the application as well as the affidavit does not indicate any reason as to why the Panchayath Parikath was not brought on record either by - 11 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 defendant No.2 or by the legal representatives when they were brought on record. Interestingly, it is to be noticed that the present application for amendment is filed by petitioner No.3, who is defendant No.2(c), has entered the witness box on 12.02.2009 and deposed before the Trial Court. Even in his evidence, he has not spoken anything with regard to the Panchayath Parikath. 7. In my considered view, the Trial Court, taking note of all these aspects, has come to conclusion that the proposed amendment filed at the stage when the matter is posted for arguments, cannot be entertained. The same is in consonance with law. 8. The Hon'ble Supreme Court in the case of Vidyabai (referred supra), at paragraphs 15 and 19 observed as under: "15. We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash (supra) to hold: - 12 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 "35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration." This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold: "41. We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter-affidavit filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings. 42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the - 13 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief." The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 16. . . . . . . . . . . . . 17. . . . . . . . . . . . . 18. . . . . . . . . . . . . 19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the - 14 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint." 9. The Allahabad High Court in the case of Amitabh Kumar Gupta (referred supra), at paragraph 11, held as under: "11. This Court is of the firm view that putting new facts on record due to engagement/change of new counsel, fault on the part of counsel or any other reason attributed to counsel cannot be ground for filing of amendment application and allow the same, which was filed after commencement of trial. In fact, in light of Order VI Rule 17 of CPC, parameters of due diligence cannot be met out by making allegation on earlier counsel and giving credit to new counsel to search out the certain new facts during the preparation of the case. Therefore, any such amendment application placed upon the efforts or mistake on the part of counsel cannot be entertained and allowed." 10. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court as well as the Allahabad High Court, I am of the considered view that the legal representatives of the original defendant No.2 cannot seek amendment of the written statement contrary to the - 15 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 stand pleaded by defendant No.2 in his written statement by taking independent stand. The proposed amendment takes away the admissions found in the written statement filed by defendant No.2, as the defendant No.2, in his written statement has admitted certain factual matrix with regard to the possession and enjoyment of the properties by the plaintiff as well as the defendants and after the proposed amendment is allowed, it would amount to taking away such admissions found in the written statement which is impermissible. Furthermore, the said application is filed at the conclusion of the trial which cannot be allowed. The Trial Court, considering all these aspects, has rightly rejected the application. I do not find any error in the order of the Trial Court warranting interference. 11. Accordingly, the writ petition is devoid of merits and is rejected. - 16 - HC-KAR NC: 2026:KHC:29743 WP No. 8494 of 2023 12. In view of the above, I.A.No.1/2025 stands closed. Sd/- (VIJAYKUMAR A. PATIL) JUDGE SHS List No.: 1 Sl No.: 17