- 1 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.9709/2020 (GM-CPC) BETWEEN: MR. Y.N. AITHAL S/O LATE SRINIVASA AITHAL AGED ABOUT 76 YEARS 150, F CROSS, 3RD BLOCK 2ND STAGE, NAGARABHAVI BENGALURU 560072. …PETITIONER (BY SRI. K. CHANDRANATH ARIGA, ADV.,) AND: 1. SMT. AMBA SHEDTHY W/O SRI. NARAYANA SHETTY POST SHIRIYARA VILLAGE 576210 UDUPI TALUK. 2. SRI. SHANKARA MOGAVURA S/O BACHA MOGAVEERA BILLADY VILLAGE POST, JANUVARKATTE 576201 UDUPI TALUK. 3. SRI. VENKTU POOJARI S/O JOGU POOJARY NAILADI, KABBINAHITTALU BILLADY VILLAGE POST. JANUVARKATTE 576201 BRAHMAVARA TALUK. Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 4. SMT. JALAJA MOGERTHY W/O NARAYANA MARAKKALA NAILADI, KABBINAHITTALU BILLADY VILLAGE POST. JANUVARKATTE 576201 BRAHMAVARA TALUK. 5. SRI. NARASIMHA MOGAVEERA S/O BACHCHA MOGAVEERA NAILADI, KABBINAHITTALU BILLADY VILLAGE POST. JANUVARKATTE 576201 BRAHMAVARA TALUK. …RESPONDENTS (BY SRI. JAYAPRAKASH SHETTY, ADV., FOR R1 R2 TO R5 ARE SD AND UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 08.07.2020 ON I.A.NO.17 IN O.S.NO.43/2000 ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC, KUNDAPURA (ANNEXURE-H). ALLOW I.A.NO.17 IN O.S.NO.43/2000 ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC, KUNDAPURA & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 08.07.2020 passed on IA.No.17 in OS.No.43/2000 by the II Additional Civil Judge and JMFC, Kundapura (for short 'the trial Court'). - 3 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 2. Sri.Chandranath Ariga, learned counsel appearing for the petitioner submits that the petitioner filed a suit for possession against Smt.Amba Shedthy and after a detailed trial, the suit came to be dismissed by the trial Court. Aggrieved by the said judgment and decree, the petitioner preferred an appeal. The Appellate Court set aside the judgment and decree of the trial Court and remanded the matter back to the trial Court to dispose of the suit after impleading the proposed defendants and also appointing a Court Commissioner. It is submitted that after remand, defendant Nos.2 to 5 were impleaded and a Court Commissioner was appointed. The Court Commissioner submitted the report and based on such report, the petitioner filed an application seeking amendment of the plaint, which came to be rejected by the trial Court on erroneous reasoning that the proposed amendment would amount to withdrawal of the relief sought against defendant No.1 and so far as a prayer seeking liberty to claim possession in the event the Court - 4 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 finds defendant No.1 to be in possession is impermissible. It is further submitted that the trial Court also observed that the proposed amendment would alter the nature of the suit. It is also submitted that the proposed amendment is based on the Court Commissioner's report, which is after remand. The said report clearly indicates the actual physical possession of the suit property by the plaintiff and the other defendants. Consequently, the application was filed seeking to amend the plaint, amend the schedule to the plaint and prayer. It is contended that the proposed amendment sought are necessary to decide the lis between the parties, as the suit is for possession and by allowing the amendment, neither the cause of action nor the relief claimed in the suit would change. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Union of India and Another1. Accordingly, he seeks to allow the petition. 1 (2011) 12 SCC 268 - 5 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 3. Sri.Jayaprakash Shetty, learned counsel appearing for respondent No.1 supports the impugned order of the trial Court and submits that the proposed amendment could not be allowed as defendant No.1, who was originally the sole defendant, way back on 11.11.2005 itself has deposed before the trial Court that defendant No.1 was not in possession of the suit property as alleged in the plaint and other persons were in possession of the property, which has been observed by the trial Court in paragraph No.19 of its judgment and the suit came to be decreed. It is submitted that, in view of the said statement, the petitioner ought to have sought amendment at the earliest point of time and not at a belated stage. It is further submitted that the proposed amendment would substitute the existing prayer, schedule and pleadings in their entirety and would introduce a new case, which is impermissible. Hence, he seeks to dismiss the petition. - 6 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No.1 and meticulously perused the material available on record. 5. The petitioner has filed OS.No.43/2000 against Smt.Amba Shedthy seeking relief of possession with regard to the suit schedule property. The said suit came to be dismissed by the trial Court vide judgment dated 26.10.2006. The petitioner assailed the said judgment before the Appellate Court in RA.No.50/2007 and the Appellate Court vide judgment dated 04.10.2012 passed the following order: “Regular Appeal filed under Order 41 Rule 1 of CPC is hereby partly allowed. The impugned judgment and decree passed in O.S.No.43/2000 by the Learned II Additional Civil Judge and J.M.F.C. Kundapura, on 26-10-2006 is set aside. I.A.II filed U/o 1 Rule 10 (2) of C.P.C. and I.A.No.III filed U/w 26 Rule 9 of C.P.C. are allowed. The suit in O.S.No.43/2000 is remanded to the Lower Court to dispose off the same afresh by impleading proposed defendants and appointing a Court Commissioner as prayed, by giving opportunity to both parties.” [Emphasis supplied] - 7 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 6. The aforesaid order of the Appellate Court makes it clear that the Appellate Court itself allowed IA.No.2 filed under Order I Rule 10(2) of the Code of Civil Procedure, 1908 (for short ‘CPC’) and IA.No.3 filed under Order XXVI Rule 9 of the CPC. The Appellate Court remanded the matter back to the trial Court to dispose of the suit afresh by impleading the proposed defendants and appointing a new Court Commissioner as prayed, by giving opportunity to parties. It is to be noticed that pursuant to the remand, the Court Commissioner submitted reports dated 18.11.2013 and 01.10.2015. It is further to be noticed that based on these reports, the plaintiff filed an application in IA.No.17 under Order VI Rule 17 of the CPC seeking amendment of the plaint. A perusal of the proposed amendment makes it clear that the petitioner/plaintiff intends to amend the plaint, the schedule to the suit and the prayer in consonance with the Court Commissioner's report. - 8 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 7. In other words, the petitioner/plaintiff is seeking a amendment to plaint to the effect that the husband of defendant No.1 has admitted before the Commissioner that defendant No.1 is not in possession of the A1 schedule property to the extent of 1 acre 3 cents. Hence, the plaintiff seeks to withdraw the relief of possession against defendant No.1 with a liberty to seek the relief, if defendant No.1 takes contrary stand than what he has taken before the Court Commissioner. Further, the amendment sought is to incorporate the finding that defendant No.4 is in possession of an extent of 84 cents, depicted in deep blue colour in the Court Commissioner's sketch annexed to the report. The trial Court rejected the application mainly on the ground that the petitioner cannot withdraw the relief against defendant No.1 while seeking alternative reliefs and that the proposed amendment would change the nature of suit. In my considered view, the trial Court has committed a grave error in coming to such a conclusion. - 9 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 8. It is required to be noticed that the suit filed by the plaintiff was initially dismissed vide judgment dated 26.10.2006 and thereafter the Appellate Court not only set aside the judgment but also remanded the matter back to the trial Court by allowing the two applications, one for impleadment and another for appointment of a Court Commissioner. It is further required to be noticed that after remand, the Court Commissioner has submitted a fresh report. The report of the Court Commissioner indicates different factual matrics than what is pleaded in the plaint, which has compelled the plaintiff to seek amendment of the plaint. In my considered view, such an amendment cannot be rejected at the threshold and the question as to whether the persons, who are stated to be in possession as per the Court Commissioner’s report are actually in possession etc., are required to be adjudicated by the trial Court during the course of trial. Premature rejection of the amendment would cause great prejudice - 10 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 to the plaintiff and it would run contrary to the observations of the Appellate Court in RA.No.50/2007. 9. The primary consideration while deciding an application for amendment is whether the proposed amendment is necessary for determining the real questions in controversy between the parties. In the case on hand, the suit is one for possession, and the plaintiff is seeking to amend the plaint based on the subsequent events i.e., the new Commissioner’s report, which places new factual matrix before the Court. In my considered view, rejection of such application is incorrect. The proposed amendment would avoid the multiplicity of the proceedings. If the proposed amendment is not allowed, then nothing would survive in the plaint to be adjudicated as pleading on record would be contrary to the factual report as per the Court Commissioner as the Court Commissioner has given the report before the trial Court indicating certain factual aspects with regard to the respective possession of the plaintiff as well as the - 11 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 defendants. Based on such report, the amendment is sought which is required to be allowed. 10. The judgment relied by the learned counsel for the petitioner is applicable to the case on hand. It would be also useful to refer the decision of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. and Another2 in which paragraph No.71 held as under: “71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC 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 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. 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 6 Rule 17CPC. 71.3. The prayer for amendment is to be allowed: 2 2022 SCC OnLine SC 1128. - 12 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do 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). 71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. 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. 71.4.3. The prayer for amendment is mala fide, or 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. 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. 71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory - 13 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 decision, the prayer for amendment should be allowed. 71.7. 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. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. 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. 71.10. 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. 71.11. 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 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 - 14 - HC-KAR NC: 2026:KHC:31043 W.P. No.9709/2020 Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897] .)” 11. For the aforementioned reasons and keeping in mind the enunciation of law laid down by the Hon’ble Supreme Court in the aforesaid decision, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 08.07.2020 passed on IA.No.17 in OS.No.43/2000 by the II Additional Civil Judge and JMFC, Kundapura is hereby set aside. Consequently, IA.No.17 filed by the plaintiff under Order VI Rule 17 of the CPC is allowed. iii. The defendants are permitted to file an additional written statement, if any. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK, List No.: 1 Sl No.: 22