The High Court of Karnataka dismissed a writ petition challenging the rejection of an amendment application under Order VI Rule 17 CPC. The Court held that the amendment introduced a new case, changing the nature of the suit, and was filed with delay.
Writ petition dismissed; no interference with the impugned order.
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 8TH DAY OF JUNE, 2023 BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO.41725 OF 2017 (GM-CPC)
BETWEEN:
SINCE DECEASED BY HIS LRS
Digitally signed by GURURAJ D Location: High Court of Karnataka
UJJINI, HOSAHALLI POST, SASALU HOBLI, DODDBALLAPURA TALUK, BANGALORE RURAL DISTRICT.
NOTE: THE LEGAL REPRESENTATIVES OF THE PETITIONERS 1 TO 5 ARE REP. BY THEIR POWER OF ATTORNEY B.G.VEERENDRA, THE 6TH L.R. OF THE PETITIONER.
…PETITIONERS
[BY SRI. RAMESH K.R., ADVOCATE (PH)]
AND:
SMT LAKSHMI, W/O LATE MURTHY, AGED ABOUT 42 YEARS, R/OF 8TH CROSS, 2ND MAIN, S.S. PURAM, TUMKUR - 572 101.
…RESPONDENT
(BY SRI. V. RAJASHEKARA, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED I ADDITIONAL CIVIL JUDGE [JD] AND JMFC, TUMKUR ON I.A. FILED UNDER ORDER 6 RULE 17 OF C.P.C IN O.S.NO.563/2008 DATED 01.09.2017 AT ANNEXURE-E AND THEREBY ALLOW THE AMENDMENT APPLICATION FILED BY THE PETITIONER UNDER ORDER 6 RULE 17 OF C.P.C IN O.S.NO.563/2008 AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed seeking for following reliefs:
SCHEDULE
Out of municipal katha no.1387/A/949, property measuring East to West: 20 feet, North to South: 18 feet, bounded on East: Road, West: House of Sadashivaiah, North: Road and then remaining property of plaintiff and South: Defendant's property, situated at Ward no.22, 2nd Main, 8th Cross, S.S.Puram, Tumkur.
and written statement was filed on 18.07.2008. Defendant denied plaintiffs title over suit schedule property. Thereafter, though parties led evidence, at time of arguments, plaintiffs filed interlocutory application under Order VI Rule 17 of CPC, seeking for amendment as follows:
AMENDMENT SOUGHT
"To add para 4.(a) after para 4
4(A). That after filing of the suit the defendant has illegally encroached upon the suit schedule property and she has put up construction on the suit schedule property. The plaintiffs are the absolute owners of the suit schedule property.
To add a.(a) before the prayer (a)
a.(a) To declare that the plaintiffs are the absolute owners of the suit schedule property."
under impugned order. Trial Court has proceeded to reject application without proper consideration. Aggrieved thereby petitioners/plaintiffs had challenged order dated 01.09.2017
NC: 2023:KHC:19611 WP No. 41725 of 2017
passed by I Additional Civil Judge (JD) and JMFC, Tumkur on I.A filed under Order VI Rule 17 of CPC in OS.no.563/2008.
are seeking for addition of pleading and relief of declaration.
NC: 2023:KHC:19611 WP No. 41725 of 2017
Insofar as pleading, perusal of application would reveal that plaintiffs are contending that defendant had illegally encroached upon suit schedule property and put up construction on suit schedule property after filing of suit. However in paragraphs no.3 and 4 of plaint contains unequivocal contrary assertion that defendant had put up foundation and was proceeding with construction upon suit schedule property prior to filing of suit. And even relief of mandatory injunction sought would indicate that encroachment/construction put up by defendant was prior to suit. Therefore, amendment of pleadings sought would introduce a new case.
"….. I submit that now we have been advised to add the relief of declaration in the prayer, since it is mandate under the Specific Relief Act. The amendment sought for will not change the nature of the suit nor introduce new case. The amendment sought for is essential in order to completely adjudicate upon real question of controversy between the parties. I submit that in spite of my due diligence I could not to incorporate
the same. The reason is purely bonafide and not intentional one."
for seeking amendment belatedly. Hon'ble Supreme Court in
case of Life Insurance Corporations of India v/s Sanjeev Builders Private Limited and Another , reported in 2022 SCC OnLine SC 1128 , has summed up law regarding amendment of pleading as follows:
“(ii) 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 VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed:
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided:
(a) amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does 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).
(iv) A prayer for amendment is generally required to be allowed unless:
(i) 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,
(ii) amendment changes nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) 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.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) 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.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) 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.
(x) 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, 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.
(xi) 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 Kr. Gandhi, 2022 SCC OnLine Del 1897)”
Sd/JUDGE
GRD
2 issues framed by the court
Whether the High Court should interfere with the impugned order rejecting the amendment application under Order VI Rule 17 CPC.
Whether adding a prayer for declaration after 9 years changes the nature of the suit and introduces a new case.
Colour shows how this judgement treated each authority
Life Insurance Corporations of India v/s Sanjeev Builders Private Limited and AnotherApplied¶59
2022 SCC OnLine SC 1128 · Who else cites this
Vijay Gupta v. Gagninder Kr. GandhiReferred¶82
2022 SCC OnLine Del 1897 · Who else cites this
3 provisions across 2 enactments
B.H. GANGADHARAIAH LRS (SRI B.G. HIRIYANNA ORS)
SMT LAKSHMI
RAVI V HOSMANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
