The High Court of Karnataka rejected a writ petition seeking to quash the trial court's refusal to allow amendment of plaint and production of a registered Gift Deed at the stage of final arguments, holding the trial court correctly found lack of due diligence.
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.
NC: 2023:KHC:44262 WP No. 2270 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 2270 OF 2023 (GM-CPC)
BETWEEN:
Digitally signed by A K CHANDRIKA Location: HIGH COURT OF KARNATAKA
GOVERNMENT HOSPITAL BUILDING BENGALURU-560 068.
…PETITIONERS
(BY SRI. H.M. MURALIDHAR, ADV.)
AND:
…RESPONDENTS
(BY SRI.Y.K. NARAYANA SHARMA, ADV. FOR C/R1 SRI PRAKASH BALUTAGI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDERS DATED 07.01.2023 PASSED IN O.S.1029/15 ON IAS NO.14 AND 15 PASSED BY XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU VIDE ANNX-L AND M AND ALLOW THIS W.P. WITH COSTS.
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.1029/2015 on the file of XLII Additional City Civil and Sessions Judge, Bangalore are before this Court, aggrieved by order dated 07.01.2023 rejecting I.A.Nos.14 and 15 filed under Order VI Rule 17 of CPC for amendment and under Order VII Rule 14(3) of CPC seeking permission to produce additional documents.
NC: 2023:KHC:44262 WP No. 2270 of 2023
dated 28.12.2012 executed in favour of first defendant, came to the knowledge of the petitioners/plaintiffs. Therefore, the petitioners filed application under Order VI Rule 17 of CPC to amend the plaint to include averments with regard to registered Gift Deed dated 28.12.2012 and seeking for additional prayer to declare that the registered Gift Deed dated 28.12.2012 executed by father of plaintiffs and defendants in favour of first defendant in respect of item Nos.4 and 6 of the suit schedule properties as not binding on the plaintiffs. Learned counsel would submit that the petitioners/plaintiffs could not file amendment application earlier since the execution of Gift Deed was not within their knowledge. Further, learned counsel would submit that amendment would be necessary for complete adjudication of the dispute between the parties, so also to arrive at equitable partition of the properties left behind by the father of the plaintiffs and defendants.
he submits that the partition itself is not binding on the plaintiffs. Moreover, he submits that the defendants while mentioning about the Will in their written statement have not stated anything about the Gift Deed. Hence, the petitioners could not include the prayer and averments with regard to Gift deed in question earlier. Learned counsel would submit that in the above circumstances, the trial Court committed an error in rejecting the application for amendment only on the ground of delay, without examining as to whether amendment and production of document would be necessary for deciding the lis between the parties. Thus, he prays for allowing the writ petition and consequently to allow I.A.Nos.14 and 15.
properties in the suit schedule. The petitioners/plaintiffs were well aware of execution of Gift Deed and they were aware of the fact that the suit properties mentioned in the Gift Deed were not available for partition as on the date of filing the suit. As such, the plaintiffs have not mentioned about the properties mentioned in the Gift Deed while filing the written statement. Further, learned counsel would submit that the petitioners/plaintiffs cannot contend that they were not aware of execution of the Gift deed dated 28.12.2012 since it is a registered Gift Deed.
Learned counsel would also submit that the suit is of the year 2015 and the present application for amendment is filed in the year 2021, i.e. after more than 7 years from the date of filing the suit. He submits that no explanation is forthcoming in the affidavit as to why the plaintiffs could not bring the amendment earlier. Learned counsel would submit that in terms of proviso to Rule 17 of Order VI of CPC, the plaintiffs have failed to satisfy the Court with regard to due diligence in not bringing the amendment earlier. Thus, he prays for dismissal of the writ petition.
on perusal of the writ petition papers, I am of the view that there is no reason to interfere with the impugned order passed by the trial Court. Moreover, the impugned is neither perverse nor suffers from any material irregularity, so as to warrant interference under Article 227 of the Constitution of India.
CPC seeking permission to amend the plaint as well as under Order VII Rule 14(3) of CPC, seeking permission to produce additional document i.e., registered Gift Deed dated 28.12.2012.
NC: 2023:KHC:44262 WP No. 2270 of 2023
that unless the Court comes to a conclusion that in spite of
NC: 2023:KHC:44262 WP No. 2270 of 2023
due diligence, the party could not have raised the matter before the commencement of trial, the Court would not get jurisdiction to allow such application. Relevant Paragraphs 10 and 19 of the above decision reads as follows:
"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:
“Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
NC: 2023:KHC:44262 WP No. 2270 of 2023
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 6 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 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. "
NC: 2023:KHC:44262 WP No. 2270 of 2023
decision of the Hon'ble Apex Court. In the instant case, admittedly, the amendment sought is to include averment in respect of the registered Gift Deed dated 28.12.2012 as well as to seek additional prayer in respect of the said Gift Deed. Admittedly, the Gift Deed is a registered document and the properties included in the Gift Deed are not included in the suit schedule while presenting the plaint apparently, on the ground that those properties were not available as on the date of filing the suit, since those properties were gifted in favour of the first defendant. As contended by the learned counsel for the respondents/ defendants, since the properties included in the Gift Deed were not the subject matter of the suit, the question of mentioning the properties continued in the Gift Deed in the written statement had not arisen. It was for the petitioners/plaintiffs to include all the joint family properties in the plaint schedule. The affidavit filed in support of amendment application as well as the application seeking permission to produce Gift Deed would not disclose due diligence of the parties as to why they
NC: 2023:KHC:44262 WP No. 2270 of 2023
could not bring the amendment earlier. The reason that the plaintiffs were not aware of execution of gift deed and
it came to their knowledge cannot be believed since it is a registered document. The amendment application filed at the stage of arguments on the main, without there being any explanation is rightly rejected by the trial Court.
Sd/JUDGE
MPK CT:bms List No.: 1 Sl No.: 56
3 issues framed by the court
Whether the High Court can interfere under Article 227 to allow amendment of plaint when the trial has commenced due to alleged lack of due diligence?
Whether the registration of the Gift Deed deprives the plaintiffs of the claim of lack of knowledge regarding its execution?
Whether the impugned order rejecting the amendment application suffers from perversity or material irregularity?
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