- 1 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 11715 OF 2025 (GM-CPC) BETWEEN: 1. SRI DEVARAJ S C SON OF CHIKKA KEMPE GOWDA, AGED ABOUT 64 YEARS, RESIDING AT GOPALA GOWDA EXTENSION, A-BLOCK, 3RD CROSS, NEAR FOOD OFFICE, SHIVAMOGGA-572201 …PETITIONER (BY SRI. PURNACHANDRA M PURANIK., ADVOCATE) AND: 1. SRI THOMAS KURIAN SON OF LATE C. K. KURIAN, AGED ABOUT 63 YEARS, RESIDING AT DHANYA NILAYA RANGANATHA BADAVANE, OPP BIG TOWER, GOPALA, SHIVAMOGGA-572201 2. SMT. KUNJUNJAMMA VARGHESE WIFE OF K.J. VARGHESE, AGED ABOUT 73 YEARS, RESIDING AT ARUNODAYA NILAYA, MIG 43, 1ST STAGE, 2ND PHASE, OPP MAIN BUS STOP, ABOVE SURAVI ENTERPRISES, K.H.B. COLONY, GOPALA, SHIVAMOGGA-572201 3. SMT. MOLLY THOMAS WIFE OF P. J. THOMAS, AGED ABOUT 65 YEARS, RESIDING AT CHALUKYA NAGARA, Digitally signed by PREMCHANDRA M R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 GOPISHETTY KOPPA, K.H.B. COLONY, GOPALA, SHIVAMOGGA-572201 4. SRI. KURIAN KOSHY, SON OF LATE C. K. KURIAN, AGED ABOUT 73 YEARS, RESIDING AT CHALUKYA NAGARA, GOPISHETTY KOPPA, K.H.B. COLONY, GOPALA, SHIVAMOGGA-572201 …RESPONDENTS (BY SRI. VARADARAJ R HAVALDAR., ADVOCATE) THIS WRIT PETITION IS FILED UNDRE ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 09.01.2025 IN OS NO. 717/2018 PASSED BY II ADDL CIVIL JUDGE AND JMFC, SHIVAMOGGA (ANNEXURE-A) AND ALLOW I.A.NO.III FILED BY THE PETITIONER UNDER ORDER 6 RULE 17, CPC IN O.S. NO.717/2018 (ANNEXURE-F) AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the defendant in O.S.717/2018 is directed against the impugned order passed on I.A.No.3, whereby the said application filed by the petitioner/ defendant under Order VI Rule 17 CPC seeking amendment of the written statement was rejected by the Trial Court. A perusal of the material on record will indicate that the respondent/s plaintiffs instituted the aforesaid suit against the petitioner/ defendant for redemption of usufructuary mortgage - 3 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 executed by the respondents/ plaintiffs in favour of the petitioner / defendant and for other reliefs. The said suit having been contested by the petitioners, the plaintiffs adduced oral and documentary evidence and at the stage of defendant's evidence, the petitioners filed the instant application seeking amendment of the written statement as hereunder: "Under order 6 rule 17 read with section 151 of CPC, the applicant/ first defendant most respectfully submits as follows: That for the reasons stated in the accompanying affidavit, the honourable court may be pleased to permit the defendant to amend his written statement as per the proposed amendment; and allow this application passing suitable orders in the ends of justice. Proposed amendment: 1. At the end of paragraph 5 of the written statement, instead of the words 'true and correct', add the words 'false and incorrect'. 2. In paragraph 6 of the written statement at Line 11, instead of the words 'true and correct' add the words 'false and incorrect'. - 4 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 3. In paragraph 7 at the end instead of the words 'true and correct', add 'false and incorrect'. 4. In paragraph 10 of the written statement, at the end add 'Now the said case stands dismissed for non-prosecution.' 5. In paragraph 12 of the written statement at line number five, instead of the words 'true and correct', add 'false and incorrect'. 6. After the existing paragraph 18 in the written statement, add-Para 18-A: It is true to state that this defendant was injected into the possession of the suit schedule property as a tenant thereof under the lease agreement dated 20.03.01. But it is false to state that there was surrender of lease and the defendant become a usufructuary mortgagee in possession of the suit schedule property. It is false to state that the lease was terminated and was put to an end by the plaintiffs. It is false to state that this defendant had surrendered the possession of the suit schedule property and the leasehold right thereof on 23.01.14 to the plaintiffs. Para 18-B: It is false to state that there is a valid mortgage agreement between the plaintiffs and this defendant. The alleged mortgage deed dated 28.10.04 has not come into effect and is not admissible in law. It is false to state that the plaintiffs and the late Tangamma had mortgaged the suit schedule property in favour of this defendant for the period of two years commencing from 24.01.04 to 24.11.06. It is false to state that the amount of Rs.1,08,000-00 was borrowed by the plaintiffs by way of loan on the usufructuary mortgage of - 5 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 the suit schedule property in favour this defendant. It is false to state that this defendant is continuing in possession of the suit schedule property as a usufructuary mortgagee under the plaintiffs and that this defendant was under an obligation to surrender the possession of the suit schedule property in favour of the plaintiffs on 24.11.06. Para 18-C: There cannot be any usufructuary mortgage by war oral agreement or by admission. Usufructuary mortgage could be created only by registered document. The alleged agreement of usufructuary mortgage itself is void and unenforceable in law and is liable to be impounded. The said document is unregistered and insufficiently stamped and the plaintiffs cannot claim any right, title or interest under the alleged unregistered usufructuary mortgagee deed. It is false to state that this defendant is in possession of the alleged original mortgage deed dated 28.10.04. The plaintiffs have intentionally made such false averment in order to escape their liability to pay duty and penalty. It cannot be said that there is any valid admission on the part of this defendant so as to create usufructuary mortgage in respect of the suit schedule property. The plaintiffs had promised to deduct the aforesaid expenses incurred by this defendant for the repair and maintenance of the suit schedule property and also the rental advance amount of Rs.1,08,000-00 paid to the plaintiffs by this defendant from out of the monthly rentals payable in respect of the suit schedule property." - 6 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 The said application having been opposed by the respondents/ plaintiffs, the Trial Court proceeded to pass the impugned order rejecting I.A.No.3, aggrieved by which the petitioner is before this Court byway of the present petition. 2. Heard learned counsel for the petitioner, learned counsel for respondents and perused the material on record. 3. A perusal of the material on record including the impugned order will indicate that the Trial Court has come to the conclusion that there were certain admissions in the written statement originally filed by the petitioners, which cannot be permitted to be withdrawn nor the petitioners can be permitted to resile from the said admission and as such the question of permitting amendment to the written statement by perpetrating to withdraw the said admission would not arise in the facts and circumstances of the case. In this context, a perusal of the proposed amendment will clearly indicate that the petitioner seeks to put forth the proposed amendment which is contrary to the pleadings which has already put forth in the written statement. At this stage, learned counsel for the petitioner submits that due to - 7 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 oversight and inadvertence, the petitioners had put forth certain pleas in the original written statement which were contrary to the documents in support of its defence and as such the petitioner may be permitted to put forth the said pleadings byway of proposed amendment. In my considered opinion, though the petitioners would be entitled to adduce evidence in support of their defence and also cross examine the respondents/ plaintiffs and his witnesses with reference to the documents which form the basis of the proposed amendment, having regard to the fact that the petitioner had made certain admissions in the written statement and seeks to put forth contrary pleadings byway of the proposed amendment, the impugned order passed by the Trial Court cannot be set to suffer from any illegality or infirmity warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam & another v/s. Chhabi Nath & others1, K.P.Nataranjan v/s. Muthalammal2 and Mohamed Ali v/s. V.Jaya & others3. However liberty is reserved in favour of the petitioner to lead evidence or put forth all his contentions including 1 (2015) 5 SCC 423 (also cited as 2015 5 SCC 426) 2 AIR 2021 SC 3443 3 (2022) 10 SCC 477 - 8 - HC-KAR NC: 2026:KHC:2528 WP No. 11715 of 2025 cross examining the plaintiffs and witnesses and also adduce defence evidence in this regard. The Trial Court is directed to consider all rival contentions between the parties and proceed further in accordance with law. 4. Subject to the aforesaid directions, petition stands disposed of without interfering with the impugned order. Sd/- (S.R.KRISHNA KUMAR) JUDGE MRP List No.: 1 Sl No.: 12