Special Leave Petition questioning the rejection of an application to amend pleadings in a partition suit. Held that the amendment does not alter the suit's nature and is allowed.
Impugned order dated 06.12.2017 set aside; I.A.No.7 allowed; plaintiffs permitted to amend plaint.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 1660 OF 2018 (GM-CPC)
BETWEEN:
Digitally signed by GURURAJ D Location: High Court of Karnataka
ALL ARE R/AT “HEMANTH NILAYA” JCR EXTENSION 4TH CROSS, 5TH BLOCK CHITRADURGA TOWN CHITRADURGA TALUK CHITRADURGA DISTRICT-577 501.
…PETITIONERS
(BY SRI. H.K. KENCHEGOWDA, ADV.)
AND:
BENGALURU - 560 010.
…RESPONDENTS
(BY SRI K.P. BHUVAN, ADV. FOR R2 & R5 R1 IS SERVED
R3 & R4 – NOTICE D/W V/O DATED 22.07.2021)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 06.12.2017 IN O.S.NO.123/2015 ON
I.A.NO.7 FILED BY THE PETITIONER HEREIN UNDER ORDER VI RULE OF 17 OF C.P.C. ON THE FILE OF LEARNED II ADDL. CIVIL JUDGE AND JMFC, CHITRADURGA, VIDE ANNEXURE-A BY ISSUING A WRIT OF CERTIORARI AS ILLEGAL AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/plaintiffs in O.S.No.123/2015 on the file of II Additional Civil Judge and JMFC, Chitradurga are before this Court questioning the order dated 06.12.2017 rejecting I.A.No.7 filed under Order VI Rule 17 of CPC to amend the plaint to include additional pleadings.
the plaint to include certain facts which was opposed by the defendants. The trial Court on considering the rival contentions, under impugned order rejected the application for amendment.
he submits that if the amendment application is allowed, no prejudice would be caused to the defendants. Further, he submits that if the amendment is allowed, neither it would prejudice the case of the respondents nor it would change the cause of action nor would it change the nature of suit. Thus, he prays for allowing the amendment application.
on perusal of the writ petition papers, I am of the view that the trial Court committed an error in dismissing I.A.No.7 for amendment of the plaint to include additional facts. The trial Court observing that additional averments sought to be included in the plaint by way of amendment would be contrary to the contentions initially taken in the plaint and also on the ground that if amendment is permitted, it would amount to fundamental alterations of pleadings.
Rule 17 would state that amendment after commencement of trial, person seeking amendment shall explain due diligence and the Court shall be satisfied with the due diligence of the party. In the instant case, when I.A.No.7 for amendment under Order VI Rule 17 of CPC was filed, the plaintiffs had not yet commenced their evidence. The amendment sought by the plaintiffs is to add certain facts which read as follows:
“ Proposed amendment :
1. To add after para 4 to insert as para “4A] The father of the plaintiff No.1 by name late KP Thimmappa Nayaka was the manager of the Hindu undivided joint family after his death his elder son by name KT Ramaswamy Nayaka was look after entire family affairs as the joint family manager. The plaintiff No.1 working under contractor, and he also got contributed some of the money and hard labour to his father and also elder brother from his own earning to construct the house over the suit schedule property. After construction of residential house, the late KP Thimmappa
NC: 2023:KHC:29466 WP No. 1660 of 2018
Nayaka nd KT Ramaswamy Nayaka have handed over the portion of the house to plaintiffs and the plaintiffs are in possession since from very long back i.e., more than 20 years. The defendants colluded with each other and created the documents like above mentioned sale deeds behind the back of the plaintiff No.1/Basavaraj hence the said sale deeds are not binding upon the plaintiffs legitimate share over the suit schedule properties. There is no legal family necessity or any circumstances arise to sold the part of the suit schedule property by K P Thimmappa Nayaka in favour of his own son by name Ramaswamy Nayaka and without delivering the physical possession hence the sale deed is not acted upon and same is sham document hence the registered sale deed dated 04.05.1977 is concocted and created by them without knowledge and notice to the plaintiffs. Further submitted that the said Ramaswamy Nayaka also not in possession at any point of time and also he has to claim the same under the sale deed the said Ramaswamy Nayaka has no absolute right to sold the same to his own daughter’s husband i.e., defendant No.5
NC: 2023:KHC:29466 WP No. 1660 of 2018
without handed over the physical possession. Hence, the said sale deeds are all concocted and created for the purpose of loan only.
B) The defendant No.5 was a officer at Canara Bank, he was under trouble due to some of the official problem for his working place hence there was a dispute. And it is further submitted that defendant No.2 and 5 daughter by name Ranjetha was trying to study of medical course hence due to fulfillment of expenses defendant No.2 and 5 requested the late Ramaswamy Nayaka to borrow the loan the property is require to register the document as style as sale deed. Hence under the said circumstance only they have created the said document without any possession and without knowledge of the plaintiffs. The plaintiffs are in continuously possession during life time of late KP Thimmappa Nayaka and KT Ramaswamy Nayaka. Hence, their possession is settled possession over the suit schedule property. And they have never partition the said property at any point of time. the defendants No.2 and 5 have created the documents for the purpose
of loan only. They have never in possession over the suit schedule property.”
it is for the plaintiffs to prove that the plaint schedule properties are joint family properties and also it is for the plaintiffs to prove their entitlement over the properties. Therefore, additional averments to include that there was no legal necessity or any circumstances to sell the suit schedule property by Thimmappa Nayaka in favour of his son by name Ramaswamy Nayaka, in any way would change the nature or complexion of the suit.
NC: 2023:KHC:29466 WP No. 1660 of 2018
(2006) 4 SCC 385, was considering a case of
amendment under Order VI Rule-17 of CPC and at paragraphs 15, 18 and 19 has held as follows:
“15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to subserve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice,
equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.”
NC: 2023:KHC:29466 WP No. 1660 of 2018
dispose of the suit expeditiously, with the cooperation of
the parties.
Sd/JUDGE
MPK CT:bms List No.: 1 Sl No.: 61
3 issues framed by the court
Whether the trial Court erred in rejecting the application for amendment of plaint under Order VI Rule 17 CPC at a stage prior to the commencement of evidence.
Whether allowing the amendment would change the nature, complexion, or cause of action of the suit for partition.
Whether the impugned order refusing the amendment causes injustice under Section 151 CPC principles.
Colour shows how this judgement treated each authority
RAJESH KUMAR AGARWAL AND OTHERS v/s K.K.MODI AND OTHERSExplained¶58
RAJESH KUMAR AGARWAL AND OTHERS v/s K.K.MODI AND OTHERS reported in (2006) 4 SCC 385 · Who else cites this
1 provisions across 1 enactments
SMT. RATHNAMMA
SMT. SHILPA B
SRI SRIDHAR S
SRI DATHATREYA NAYAKA
SMT. SHASHIKALA
SMT. NAGAVENI
S.G.PANDIT
As recorded by the court registry
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