A Mohammed Rasool @ Mujeeb Pasha Vs Smt. Vageeswari S

A. MOHAMMED RASOOL @ MUJEEB PASHA AGED ABOUT 57 YEARS S/O LATE AMEER JAIN RESIDING AT NO 1174 35TH C CROSS, 26TH MAIN JAYANAGAR 4TH T BLOCK BANGALORE - 560 041. PREVIOUSLY AT NO.345/2/62 BEGUR VILLAGE, BEGUR HOBLI BANGALORE SOUTH TALUK.

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&PETITIONER

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(BY SRI M.R. RAJAGOPAL S, ADV., FOR SRI THILOK RAJ S.V, ADV.)

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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AND:

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SMT. VAGEESWARI S AGED ABOUT 59 YEARS W/O B.R. SRINIVASA RESIDING AT FLAT NO.106 OASIS CONDOMINIUMS S R LAYOUT, MURUGESHPALYA BANGALORE - 560 017.

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&RESPONDENT

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(BY SRI SHARATH S GOWDA, ADV.)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR SUCH THERE APPROPRIATE WRIT OR ORDERS OR DIRECTORS, QUASH THE ORDER DATED 02/01/2024 PASSED BY THE

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COURT OF THE XXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-38) BANGALORE CITY IN OS 5100/2008 ON IA NO. 1/2023 FILED BY THE RESPONDENT UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE ORDER (I.E. ANNEUXRE-A) AND TO CONSEQUENTLY DISMISS THE IA NO. 1/2023 IN OS NO. 5100/2008 FILED BY THE RESPONDENT UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the Constitution of India, is filed by the plaintiff with a prayer to set aside the order dated 02.01.2024 passed on IA.no.1/2023 in O.S.No.5100/2008 by the Court of XXXVII Addl. City Civil Judge, Bengaluru.

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Heard the learned Counsel for the parties.

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Petitioner herein has filed O.S.No.5100/2008 before the

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jurisdictional Civil Court at Bengaluru, seeking the relief of declaration of title and consequential relief of permanent injunction in respect of the suit schedule property. The respondent herein has filed her written statement and opposed the suit claim. IA-1/2023 was filed under Order VI Rule 17 CPC with a prayer to amend the original written statement filed on

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behalf of the respondent. The said application was opposed by the petitioner by filing objections. The Trial Court vide the order impugned has allowed IA-1/2023 and being aggrieved by the same, petitioner is before this Court.

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Learned Senior Counsel appearing on behalf of the petitioner submits that the suit was earlier decreed and as against the said judgment and decree, respondent herein had filed RFA.No.1585/2011 before this Court, which was allowed and the matter was remitted to the Trial Court with certain observations. This Court while remitting the suit, after allowing IA-1/2019 filed under Order XLI Rule 27 CPC, has not permitted the defendant to amend the written statement. Perusal of the original written statement would go to show that there are sufficient pleadings with regard to the additional documents which were permitted to be produced by the defendant in RFA.No.1585/2011. He submits that IA.no.4 which

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was filed on behalf of the respondent seeking permission to amend the written statement was rejected earlier and as against the said order, respondent no.1 approached this Court in WP.No.10459/2022 and this Court having permitted the

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petitioner to withdraw IA.no.4 with liberty to file a fresh application seeking amendment of the written statement, has observed that such application is required to be considered strictly in accordance with the observations passed by this Court in the judgment dated 15.01.2011 passed in RFA.No.1585/2011. The Trial Court has failed to appreciate the observations made by this Court and has traveled beyond the judgment passed in RFA.No.185/2011 as well as in WP.No.10459/2022 which is not permissible. He submits that all subsequent events necessarily need not be taken on record and it is for the Court to decide having regard to the facts and circumstances of each case. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of LAXMI & CO. VS DR. ANANT R.DESHPANDE

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& ANOTHER - (1973)1 SCC 37 and also in the case of GHASIRAM S/O JAWAHARLAL JAIN VS KUNJILAL (DEAD) THROUGH LRS GUNPAL S/O KUNJILAL JAIN & OTHERS - 1992 MP LJ 103 .

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Per contra, learned Counsel for the respondent has argued in support of the impugned order. He submits that in the proposed amendment, petitioner is only seeking to explain

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the documents which he had produced along with IA-1/2019 in RFA.No.1585/2011. The proposed amendment would not in any way change the nature of defence. He submits that the Hon'ble Supreme Court has time and again said that courts should be liberal in considering the applications filed seeking amendment of the pleadings in order to avoid multiplicity of litigation. He submits that in the case of B.K.NARAYANA PILLAI VS PARAMESWARAMN PILLAI & ANOTHER - (2000)1 SCC 712 , the Hon'ble Supreme Court has observed that courts should be more liberal while considering the application for amendment of written statement. Accordingly, he prays to dismiss the petition.

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Perusal of the material on record would go to show that O.S.No.5100/2008 was earlier decreed by the Trial Court on 18.07.2011 and as against the said judgment and decree, the respondent herein had approached this Court in RFA.No.1585/2011. In the said appeal, IA-1/2019 was filed under Order XLI Rule 27 CPC and along with the said application, as many as 19 documents were produced before this Court. In paragraph 33 of the judgment in

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RFA.No.1585/2011, the Division Bench of this Court has observed as under:

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"33. The documents now placed on record by the appellant relates to subsequent events, post judgment and decree dated 18.7.2011 impugned herein. Given the circumstances, it is necessary for the Appellate Court to obtain such evidence for enabling it to pronounce judgment. It is for the substantial cause, the additional evidence is required and the same warrants a remand as discussed aforesaid to provide an opportunity to both the parties to tender evidence, if any. Accordingly, IA No.1/19 filed by the appellant for production of additional documents is allowed."

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RFA.No.1585/2011 was allowed by this Court on 15.01.2021 and the matter was remitted to the Trial Court with a direction to the Trial Court to decide the matter afresh after affording an opportunity to both the parties to lead evidence, if any. In compliance of the judgment passed in RFA.No.1585/2011, the parties had appeared before the Trial Court, and thereafter, IA-4 was filed on behalf of the defendant under Order VI Rule 17 CPC with a prayer to amend the written

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statement and also to raise a counter claim. The said application was opposed by the plaintiff and the Trial Court had rejected the said application. Being aggrieved by the same,

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respondent herein had approached this Court in WP.No.10459/2022. The said writ petition was dismissed as withdrawn on 25.09.2023 with liberty to the respondent to withdraw IA-4 filed in O.S.No.5100/2008 and file a fresh application for amendment of the written statement. It was observed by this Court while disposing of WP.No.10459/2022 that if such an application is filed, the Trial Court shall consider the same in accordance with law taking note of the observations made by this Court in RFA.No.1585/2011 disposed of on 15.01.2021. Thereafter, IA-1/2023 was filed on behalf of the respondent herein under Order VI Rule 17 CPC with a prayer to amend the written statement.

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It is relevant to note here that IA-4 was filed with a prayer to amend the written statement and also to raise counter claim. Since the trial in the suit had already commenced, in view of the law laid down in the case of ASHOK KUMAR KALRA VS WING CDR. SURENDRA AGNIHOTRI & ORS. - (2020)2 SCC 394 , raising a counter claim after the trial had

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commenced was not permissible and it appears that, it is in this background, in WP.No.10459/2022, the respondent was

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permitted to withdraw IA-4 and file a fresh application seeking amendment of the written statement. In IA-1/2023 that was filed after disposing of W.P.No.10459/2022, a prayer is made to incorporate paragraph nos.24 to 45 after paragraph no.23 in the written statement.

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A perusal of the averments found in proposed paragraph nos.24 to 45 would go to show that the respondent/defendant intends to explain the documents which are permitted to be produced by this Court in RFA.No.1585/2011, and thereby elaborate the pleadings which she had raised in her original written statement. Except the same, no other amendment is sought in IA-1/2023.

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The Trial Court having appreciated this aspect of the matter and having taken note of the fact that the proposed amendment will not change the nature of defence in the written statement, has rightly allowed IA-1/2023. The Hon'ble Supreme Court in B.K.Narayana Pillai's case supra, has observed that though the principle for considering the application for amendment is equally applicable to amendment of plaint as well as the written statement, the courts should

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normally be liberal in permitting amendment of written statement, as prejudice that is likely to be caused is less in case of amendment of written statement.

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10. In the case of SMT. PUTTAMMA VS N.J.SHANKAR &

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OTHERS (W.P.No.2388/2024 disposed of on 10.11.2025) , this

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Court in paragraph nos.9 & 10, has observed as under:

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"9. I.A No.10 was filed on behalf of the plaintiff on

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20.11.2023, when the suit was at the stage of arguments, with a prayer to amend the plaint by incorporating proposed paragraph No.3(a) immediately after paragraph No.3 in the plaint. A reading of the proposed paragraph No.3(a) go to show that the plaintiff has narrated the facts about the flow of title of the suit schedule property in her favour and also has stated that suit schedule property is part and parcel of land bearing survey No.58 which was subsequently subdivided. The proposed amendment in no way changes the nature of the suit or the cause of action for the suit. Proposed amendment is only to bring on record certain factual aspects which would be necessary for the purpose of proper and effective adjudication of the dispute between the parties.

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It is relevant to note that in R.A No.23/2017 the Appellate Court while remitting the matter to the Trial Court has directed the Trial Court to afford opportunity to both the parties to adduce additional

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evidence and both the parties have not only lead additional evidence but also have marked certain additional documents. The proposed amendment appears to be explaining the documents which are produced on behalf of the plaintiff after remand. The proviso to Order 6 Rule 17 of CPC does not completely bar filing of an application seeking amendment of the plaint and in the present case, it is relevant to note that suit was earlier decreed and in R.A No.23/2017, the judgment and decree passed in favour of the plaintiff was set aside and the matter was remitted with liberty to the parties to lead additional evidence and the proposed amendment is only with regard to additional facts about flow of the title in respect of the suit schedule property."

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The Hon'ble Supreme Court in the case of LIFE INSURANCE CORPORATION OF INDIA VS SANJEEV BUILDERS

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PRIVATE LIMITED & ANR. - (2022) SCC OnLine SC 1128 , has observed that the Courts while dealing with the prayer for amendment of pleadings should avoid a hyper technical approach. In the said case it is also observed that amendments should be normally allowed to avoid multiplicity of proceedings.

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Learned Counsel for the petitioner referring to the judgment in Ghasiram's case supra, has placed reliance on paragraph no.11 of the said judgment, which reads as under:

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"11. It is no doubt well settled that when a higher Court remands the suit to the lower Court for a decision afresh with certain specific directions the jurisdiction of the Court to which the remand is made depends upon the terms of the remand order and that Court to which the remand is made cannot consider the matters other than those specified in the remand order. In other words, if the higher Court remands the case to the trial Court the jurisdiction of the trial Court is fortified by terms of remand order and the specific direction contained therein. But, if the higher Court in its remand order has not expressed any view on merits on the questions in controversy between the parties and once the trial Court acts within the scope and directions contained in the remand order and passes the judgment and order which is subjected to further appeal, the said order of judgment shall be open to challenge on all possible grounds and in that event the jurisdiction of the appellate Court cannot be deemed to have been circumscribed or curtailed by the remand order and the appellate Court would be within its jurisdiction to exercise its power to decide the appeal on merits, on all the points and grounds raised before it. In the present case, it has not been disputed that the trial Court had acted within the scope and limitations imposed by the remand order and, therefore, it cannot be said that the trial Court had acted beyond its jurisdiction. The judgments and decrees of the trial Court were challenged in first appeal and there being no embargo the first appellate Court was justified in exercising its jurisdiction

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on the questions raised before it as the High Court had not taken any decision in respect of any of the points in controversy between the parties. It therefore cannot be said that the lower appellate Court had acted beyond its jurisdiction."

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The aforesaid paragraph states with as to how lower court

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should consider the order of remand passed by the Appellate Court with specific directions, and in the case on hand, having allowed IA-1/2019, the Appellate Court has remanded the suit to the Trial Court with a direction to consider the matter afresh after providing an opportunity to both the parties to lead evidence. The proposed amendment now made is only to explain the documents which are permitted to be produced by the Appellate Court, and therefore, it cannot be said that the Trial Court has exceeded its jurisdiction by allowing IA-1/2023.

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In Laxmi & Co's case supra, the Hon'ble Supreme Court in paragraph 27, has observed as under:

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"27. It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such

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changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the court also takes notice of such event. If the property which is the subject matter of suit is no longer available the court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice. Judged by these principles it is manifest that in the present case suits are pending. On the one hand the appellant has challenged the decree obtained by Ashar and others as also the warrant of execution. On the other hand, the suit instituted by Ashar and others against inter alia the appellant in 1965 for possession is pending. This Court cannot say with exactitude that any final decision has been reached on the respective and rival rights and claims of the appellant and the respondent. It is, therefore, neither desirable nor practicable to take notice of any fact on the rival versions of the parties as to subsequent events."

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The principles laid down in the aforesaid judgment cannot

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be made applicable to the facts and circumstances of the present case, and therefore, I am of the opinion that the said judgment will not be of any aid to the petitioner in the present case.

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Under the circumstances, I am of the opinion that the

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Trial Court was fully justified in allowing IA-1/2023.

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In the light of the above, I do not find any good ground to entertain this writ petition. Accordingly, the writ petition is dismissed.

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It is needless to state that since the suit is of the year 2008, the Trial Court shall make endeavours to expedite the trial and dispose of the suit on merits, expeditiously.

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Sd/(S VISHWAJITH SHETTY)

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JUDGE

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KK

A Mohammed Rasool @ Mujeeb Pasha v. Smt. Vageeswari S

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A Mohammed Rasool @ Mujeeb Pasha v. Smt. Vageeswari S

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