Dismissed¶133

Smt. Nagarathnamma v. Sri. H. S. Raghavendra

Karnataka HC1 Apr 2025WP/47866/2019

Case brief

AI extract

What is this about?

Post-commencement amendment of plaint; proviso to Order VI Rule 17 CPC; due diligence test; injunction suit converted to declaratory relief; O.S.No.611/2014 (CCH-15 Bengaluru); decree in O.S.No.5832/1991 and execution Ex.No.1558/1998 (Krishnappa); revenue sites; lis pendens and limitation defences preserved; Dinesh Goyal AIR 2024 SC 4779 relied upon; writ petitions dismissed; cost Rs.1,000/-; Justice M.I. Arun; NC: 2025:KHC:13506.

What did the court decide?

Although the decree in O.S.No.5832/1991 was mentioned in the written statement of defendants No.3 and 4 and surfaced in PW1's cross-examination, a perusal of both does not reveal all the particulars regarding O.S. No. 5832/1991. ¶98

Smt. Nagarathnamma Vs Sri. H. S. Raghavendra — Writ and Judicial Review | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶133

Issue for consideration

Whether the amendment sought by the plaintiff in OS No.611/2014 can be allowed in the light of the proviso to Order VI Rule-17 of CPC?

¶83

Court's answer

¶98

Ratio / Principle

Because the plaintiff traces title to a defendant in O.S.No.5832/1991 while defendants No.3 and 4 claim through the plaintiff in that suit, a bare injunction suit would not suffice and a decree of declaration is required; the amendment is therefore just and necessary and essential to determine the real dispute between the parties.

¶99

Key takeaways

The defendants retain the right to take up all necessary defences against the plaintiff, including lis pendens and limitation.obiter¶99
An application for amendment after commencement of trial cannot be allowed unless the Court concludes that, in spite of due diligence, the party could not have raised the matter before commencement of trial.obiter¶89
In light of the principles in Dinesh Goyal (AIR 2024 SC 4779) and the need to understand the implication of the O.S.No.5832/1991 judgment and decree to determine the real controversy, the Court found no error in the Trial Court's order allowing the amendment and dismissed both writ petitions.

Detailed headnote1 paragraphs

High Court of Karnataka (M.I. Arun, J.), oral order dated 01.04.2025 in WP No.47866/2019 (GM-CPC) c/w WP No.40423/2019 (GM-CPC): defendant No.6 (Smt. Nagarathnamma) and defendant No.3 (Smt. Renuka) in O.S.No.611/2014, a permanent injunction suit, challenged the order dated 06.08.2019 of the VIII Additional City Civil and Sessions Judge, Bengaluru (CCH-15) allowing the plaintiff's IA No.IX under Order VI Rule 17 CPC to amend the plaint - adding prayers for declaration of absolute ownership under registered sale deed dated 15.03.1996, that the judgment and decree dated 23.07.1998 in the earlier suit are not binding on the plaintiff, mandatory injunction to demolish construction, and delivery of possession. Though issues were framed on 01.12.2015 and trial commenced on 03.08.2016 (amendment sought 02.03.2019), the Court held that the written statement of defendants No.3 and 4 and PW1's cross-examination did not reveal all particulars of the decree in O.S.No.5832/1991; as the parties derive title from opposite sides of that decree, a bare injunction suit would not suffice and a declaration was essential to determine the real controversy, making the amendment just and necessary. Drawing on the liberal approach set out in Dinesh Goyal alias Pappu v. Suman Agarwal (Bindal), AIR 2024 SC 4779, no error was found in the Trial Court's order; both writ petitions were dismissed, with no opinion on merits and liberty preserved to the defendants to urge lis pendens and limitation defences.

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF APRIL, 2025

¶5

BEFORE

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THE HON'BLE MR. JUSTICE M.I.ARUN WRIT PETITION NO. 47866 OF 2019 (GM-CPC) C/W WRIT PETITION NO. 40423 OF 2019 (GM-CPC)

¶7

IN WP No. 47866/2019: BETWEEN:

¶8

SMT. NAGARATHNAMMA AGED ABOUT 52 YEARS W/O SRI. HANUMANTHARAYAPPA PRESENTLY RESIDING AT No.648/22 G-102, RR HOME GUBBALALA, SUBRAMANYAPURA POST BENGALURU-560 061

¶9

…PETITIONER

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(BY SRI. SHANKARA, ADVOCATE FOR SRI. VISHWANATHA M.S., ADVOCATE)

¶11

Digitally signed by H K HEMA Location: HIGH COURT OF KARNATAKA

¶12

AND:

¶13

SRI. H. S. RAGHAVENDRA AGED ABOUT 54 YEARS S/O LATE SANJEEVA SHETTY RESIDING AT No.11, KHB QUARTERS 1 AND 3^RD BLOCK EAST, JAYANAGAR BENGALURU- 560 011

¶14

SRI. K. RAMESH AGED ABOUT 36 YEARS S/O KRISHNAPPA RESIDING AT No.325, 1^ST FLOOR 11^TH CROSS, SHAKAMBARI NAGAR J.P. NAGA, 1^ST PHASE BENGALURU-560 078

¶15

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SMT. RENUKA AGED ABOUT 42 YEARS W/O LATE SUBRAMANYA RESIDING AT No.7/24 11^TH MAIN ROAD SHAKAMBRINAGAR J.P. NAGAR, 1^ST PHASE BENGALURU-560 078

¶18

SRI. INDU KUMAR AGED ABOUT 26 YEARS S/O LATE SUBRAMANYA RESIDING AT No.7/24 11^TH MAIN ROAD SHAKAMBRINAGAR J.P. NAGAR, 1^ST PHASE BENGALURU-560 078

¶19

SR. ROHINI AGED ABOUT 24 YEARS D/O LATE SUBRAMANYA RESIDING AT No.7/24 11^TH MAIN ROAD SHAKAMBRINAGAR J.P. NAGAR, 1^ST PHASE BENGALURU-560 078

¶20

…RESPONDENTS

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(BY SRI. RAGHAVENDRA A. KULKARNI, ADVOCATE FOR R1; SRI. Y.K. NARAYANA SHARMA, ADVOCATE FOR R3; V/O DATED 14.12.2021-NOTICE TO R2, R4 & R5 ARE HELD SUFFICIENT)

¶22

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 06.08.2019 PASSED BY THE HON'BLE VIII ADDITIONAL CITY CIVIL AND SESSION JUDGE, BENGALURU (CCH-15) IN OS.No.611/2014 IN ALLOWING IA No.9 FILED BY THE RESPONDENT No.1 HEREIN UNDER ORDER VI, RULE-17 OF THE CODE OF CIVIL PROCEDURE VIDE ANNEXURE-K.

¶23

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

¶25

IN WP NO. 40423/2019: BETWEEN:

¶26

SMT. RENUKA AGED ABOUT 43 YEARS W/O LATE SUBRAMANI EARLIER RESIDING AT No.7/24 11^TH MAIN ROAD SHAKAMBARINAGAR J.P. NAGAR, 1^ST PHASE BENGALURU-560 078 PRESENTLY R/AT. No.7 VALLABHA NAGAR, 7^TH CROSS KONAKUNTE CROSS BENGALURU-560 078 (BY SRI. Y.K. NARAYANA SHARMA, ADVOCATE)

¶27

...PETITIONER

¶28

AND:

¶29

SRI. H.S. RAGHAVENDRA AGED ABOUT 54 YEARS S/O LATE SANJEEVA SETTY RESIDIGN AT No.11, KHB QUARTERS 1 AND 3^RD BLOCK EAST, JAYANAGAR BENGALURU-560 011

¶30

SRI K. RAMESHA S/O LATE KRISHNAPAP AGED ABOUT 36 YEARS RESIDING AT No.225, 1^ST FLOOR 11^TH CROSS, SHAKAMBARINAGAR J.P. NAGAR 1^ST PHASE BENGALURU-560 078

¶31

SRI. INDUKUMAR AGED ABOUT 26 YEARS S/O LATE SUBRAMANYA RESIDING AT No.7/24 11^TH MIAN ROAD SHAKAMBARINAGAR J.P. NAGAR 1ST PHASE

¶32

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

¶34

BENGALURU-560 078

¶35

MISS. S.R. ROHINI AGED ABOUT 22 YEARS D/O LATE SUBRAMANI RESIDING AT No.7/24 11^TH MAIN ROAD, SHAKAMBARINAGAR J.P. NAGAR 1^ST PHASE BENGALURU-560 078

¶36

SMT. NAGARATHNAMMA AGED ABOUT 51 YEARS W/O SRI. HANUMANTHARAYAPPA RESIDING AT No.65/1, 10^TH MAIN 2^ND CROSS, 7^TH BLOCK, 4^TH PHASE BANASHANKARI 3^RD STAGE BENGALURU-560 085

¶37

...RESPONDENTS

¶38

(BY SRI. RAGHAVENDRA A. KULKARNI, ADVOCATE FOR R1; SRI. SHANKARA, ADVOCATE FOR SRI. M.S. VISHWANATHA, ADVOCATE FOR R5; V/O DATED 19.09.2023 NOTICE TO R2 TO R4 IS DISPENSED WITH)

¶39

THIS W.P. FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 06.08.2019 PASSED IN O.S.No.611/2014 BY THE COURT OF THE 8^TH ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-15) AS PER ANNEXURE-'H' AND ETC.

¶40

THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶41

CORAM: HON'BLE MR. JUSTICE M.I.ARUN

¶42

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

¶44

ORAL ORDER

¶45

Aggrieved by the order passed on IA No.IX in OS No.611/2014 by the City Civil Judge at Bengaluru(CCH-15), defendant No.6 has preferred WP No. 47866/2019 and defendant No.3 has preferred WP No.40423/2019.

¶46

For the sake of convenience, parties are referred to as per their status before the Trial Court.

¶47

The plaintiff filed OS No.611/2014 with the following prayers in respect of the suit schedule property.

¶48

" i) Grant Permanent Injunction restraining the Defendants, their agents, person/s claiming under them with the peaceful possession and enjoyment of the suit schedule property by plaintiff.

¶49

ii) To pass such other order/orders as this Hon'ble Court may deem fit on the facts of the case.

¶50

iii) Grant exemplary cost of the suit to meet the end of justice."

¶51

Defendants No.3 and 4 filed the written statement on 02.07.2014 and defendant No.6 filed the written statement on 05.12.2016. Issues were framed on 01.12.2015 and evidence was let in by the plaintiff on 03.08.2016. During the cross-examination of PW1, he has deposed as follows:

¶52

¶53

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¶54

"�ೕ�ೆ �ೇ�ದ ಕೃಷ�ಪ�ರವರು ಮೂಲ�ಾ�ಾ ನಂ. 5832/91 ಇದನು� ಸೂgÀå�ಾ�ಾಯಣ!ೆ"# ಮತು% ಇತರರ 'ರುದ( ಸ)+ದ,ರು ಅಂದ�ೆ , .ಜ. ಆ, �ಾ�ೆಯನು�, 1ಾವ ಪ2�ಾರ3ಾ45 ಸ)ಸ�ಾ5ತು% ನನ6ೆ 6ೊ7%ಲ, ಆ, �ಾ�ೆ ಸ)+ದ '8ಾರ, ನನ6ೆ 1998ರ)* 6ೊ9ಾ%:ತು. ಆ, �ಾ�ೆಯನು�, �ಾನು, 1ಾವ .�ೇಶನವನು� RjÃ¢ <ಾ=�ೆ,ೕ�ೆ>ೕ, ಅ�ೇ .�ೇಶನದ ಸ�ೆ? ನಂಬA ಕು29ಾ5 ಸ)ಸ�ಾ5ತು%, ಆ, �ಾ�ೆಯ ಸಂಗ7ಗಳನು�, 7�ದು3ೊಳDಲು ಪEಯತ�ಪFೆ#. ಆಗ, .ಮ6ೇನು 9ೊಂದ�ೆ ಆಗುವGHಲ�ೆಂದು ಅವರು �ೇ�ದರು. ಅದ3ಾ45 ಸುಮI�ಾ�ೆ . �ಾನು, ಆ '8ಾರ, ಸುಳJD �ೇಳJ7%�ೆ,ೕ�ೆ ಅಂದ�ೆ , ಸ2ಯಲ*.

¶55

ಕೃಷ�ಪ�ರವರು, ಆ, �ಾ�ೆಯನು� ಆ, ಪEಕರಣದ ಪE7�ಾHಗಳJ, ಆಧ2+ರುವ LMಎ 9ೊ"#:ಂದ ಕೂ=�ೆ ಎಂದು, �ೇ�3ೊಂಡು �ಾಗೂ ಆ, �ಾ�ೆಯ PೆಡೂQR ಸS7%6ೆ 9ಾ�ೇ <ಾ)ೕಕ, ತನ�ನು� <ಾ)ೕಕ ಎಂದು TೂೕಷUೆ <ಾಡVೇಕು ಎಂದು �ಾಗೂ ಆ, ಸS7%ನ WಾSXೕನವನು�, ಪEಕರಣದ ಪE7�ಾHಗYಾದ ಸೂgÀå�ಾ�ಾಯಣ!ೆ"# ಮತು% ಇತರ2ಂದ 3ೊ=ಸVೇಕು ಎಂದು, ಪ2�ಾರವನು� 3ೇ�, ಸ)+ದ,ರು ಅಂದ�ೆ , ನನ6ೆ 6ೊ7%ಲ, WಾSXೕನ3ಾ45 ಸ)+ಲ ಎಂದು, WಾZ �ೇಳJ9ಾ%�ೆ . ಆ, �ಾ�ೆಯ PೆಡೂQRನ), ಕೃಷ�ಪ�ರವರು, ಸS7%ನ 'ವರವನು� ಸನಂ 123 ಮತು% 131, ಕ7Eಗು[ೆ� 6ಾEಮ ಎಂದು 9ೋ2+�ಾ,�ೆ ಅಂದ�ೆ , .ಜ. �ಾನು, ಕEಯ3ೆ4 ಪ\ೆದು3ೊಂ\ೆ ಎಂದು �ೇಳJವ .�ೇಶನ ಕೂಡ, �ೕ�ೆ �ೇ�ದ �ಾ�ೆಯ PೆಡೂQR ಸS7%ನ) ಬರುತ%�ೆ .

¶56

ಕೃಷ�ಪ�ರವರು ಸ)*+ದ �ೕ�ೆ �ೇ�ದ �ಾ�ೆ , ಕೃಷ�ಪ�ರವರ ಪರ�ಾ5 7ೕ<ಾ?ನ�ಾ:ತು ಮತು% ಆ, ಪEಕರಣದ ಪE7�ಾHಗಳJ �ೊಂHದ, ಸS7%ನ WಾSXೕನವನು�, ಕೃಷ�ಪ�ರವ26ೆ ,

¶57

7 - NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

¶58

WಾSXೕನ .ೕಡVೇಕು ಎಂದು, �ಾQ1ಾಲಯ ಆ�ೇಶ <ಾ=�ೆ ಅಂದ�ೆ , ನನ6ೆ 6ೊ7%ಲ*, ಆ, '8ಾರ ನನ6ೆ , 6ೊ7%ದ,ರೂ ಕೂಡ, �ಾನು, ಸುಳJD �ೇಳJ7%�ೆ,ೕ�ೆ ಅಂದ�ೆ ಸ2ಯRಲ.

¶59

�ೕ�ೆ �ೇ�ದ �ಾ�ೆ =]E1ಾದ �ೕ�ೆ ಕೃಷ�ಪ�ರವರು, ದರ3ಾಸು% ಅL? ನಂ.1558/1998 ಇದನು�, ಸ)+ದ,ರು ಅಂದ�ೆ , ನನ6ೆ 6ೊ7%ಲ. 1998ರ)*, ನನ6ೆ , �ಾ�ಾ '8ಾರ 6ೊ9ಾ%5ದು, ಕೃಷ�ಪ�ರವರ ಮಕ4�ಂದ. £ÀªÀÄä ^ಾಗದ ಹ7%ರ �ಾವG, ಇ�ಾ,ಗ ಕೃಷ�ಪ�ರವರ ಮಕ4ಳJ, §A¢zÀÝgÀÄ. ಆಗ, '8ಾರ 6ೊ9ಾ%:ತು."

¶60

With the aforementioned deposition, the plaintiff on

¶61

the ground that he came to know about new facts relating to the transactions regarding the suit schedule property, made an application to amend the plaint, wherein apart from the amendment of the pleadings in the plaint, the following prayers were sought to be inserted:

¶62

" (i) Declare that the plaintiff is the absolute owner of the suit schedule property by virtue of Registered sale deed dated 15.03.1996, Registered as Document No.15013/1995-96, registered before the Sub-Register, Kengeri, Bengaluru.

¶63

(ii) Declare that the judgment and decree dated 23.07.1998 passed in OS No.5831/1991, Vide Ex-D1 and D2 marked by the Defendants side on 17.12.2018 are not binding on the plaintiff.

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

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(iii) To order for Mandatory Injunction to demolish the illegal construction of Building standing on the Suit schedule property.

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(iv) To delivery the possession of the suit schedule property to the plaintiff.

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and thereafter;

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Prayer (i) and (ii) may be amended as prayer (v) and (vi)"

¶70

Defendants No.3,4 and 6 opposed the amendment to the plaint on the ground that the facts sought to be inserted in the plaint were well within the knowledge of the plaintiff and reliance is placed on the written statement filed by defendants No.3 and 4, which reads as under:-

¶71

" 10.It is respectfully submitted that Sri.Krishnappa, father of the defendant No.1 and 2 Subramanya, was the owner of certain lands in katriguppe Village. The defendant No.3 is wife, No.4 and 5 are sons and daughters of late Subrahmanya. The said late Sri. Krishnappa and Sri. K. Manjunath, 2^nd defendant are no more. During the lifetime of Sri. Krishnappa, he filed a suit in OS No.5832/1991 in the Court of the City Civil Judge against the persons who have illegally occupied the same, seeking declaration of his title and for possession of the said lands. The said suit was decreed and Sri. Krishnappa had filed Execution Petition in Ex.No.1558/1998 seeking possession of the same. In the said Execution Petition, settlements have

¶72

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taken place regarding major portion of the property and the Execution is pending regarding the some portion. It is submitted that without authority, the said lands were made into revenue sites and sold to several persons by some of the defendants in that suit filed by late Krishnappa. Several purchases have constructed buildings on the respective sites also. On enquiry, it is learnt that the plaintiff is making a claim against one of the sites where the purchaser has already put up construction and wrongly claiming the same as vacant site of the plaintiff. However, these defendants are not parties to the said disputes. Smt.Nagarathnamma, the 6^th defendant claimed one such site where the building has already come up and the claim against the 6^th defendant by the plaintiff is also not proper. The property purchased by Smt.Nagarathnamma and where the building is constructed is not the property of the plaintiff and it was not the property of the plaintiff's Vendor also."

¶75

7 . However, the Trial Court has allowed the application filed by the plaintiff and has passed the following order:

¶76

" IA No.IX filed on behalf of the plaintiff under Order VI, Rule 17 of the Code of Civil Procedure seeking amendment of the plaint is allowed on payment of cost of Rs.1,000/-.

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Plaintiff is permitted to amend the plaint as claimed in IA No.IX."

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¶79

Aggrieved by the same, the present writ petitions

¶80

are filed.

¶81

The case of defendants No.3,4 and 6 is that the impugned order passed by the Trial Court is in violation of the proviso to Order VI Rule-17 of CPC as the plaintiff had the knowledge about the facts sought to be pleaded by way of amendment much before filing of the suit or at least when defendants No.3 and 4 filed the written statement and that the Trial Court has erroneously passed the impugned order.

¶82

The only question that arises for consideration in the instant case is:

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"Whether the amendment sought by the plaintiff in OS No.611/2014 can be allowed in the light of the proviso to Order VI Rule-17 of CPC?"

¶84

Order VI Rule-17 of CPC reads as under:-

¶85

17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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¶88

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.

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Thus, an application for amending the plaint or the written statement can be filed by the parties concerned at any stage of the proceedings but the same has to be filed to show that the same is done in the interest of justice and necessary for the purpose of determining the real questions in controversy between the parties. However, no such application for amendment can 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 the trial.

¶90

In the instant case, admittedly, the issues have been framed on 01.12.2015 and the trial has commenced on 03.08.2016 and the application for amendment has been sought to be made on 02.03.2019.

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The case of the plaintiff is that he was not aware as to the details pertaining to the decree passed in OS No.5832/1991 and the implication of the same.

¶94

Per contra, the case of the defendants is that in the written statement filed by Defendants No.3 and 4 itself, the details have been brought out and in the cross-examination of the plaintiff itself, he has admitted as to his knowledge regarding the said decree passed in OS No.5832/1991. However, the plaintiff submits that though a mention was made with regard to the said original suit in the written statement, he was not a party to the proceedings and that the written statement did not mention about the defendants in the said suit through whom the plaintiff has derived title with regard to the property. He submits that he has become the owner of the property by a sale deed dated 15.03.1996 and it is important that to determine the actual controversy, the amendments sought by him in the plaint have to be carried out. He further submits that he came to know about all the details regarding the said suit and the implication of the same on him only after cross examination of PW1 was completed. Hence, he has made the necessary application.

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A perusal of the written statement filed by

¶98

defendants No.3 and 4 and also the cross-examination of the plaintiff do not reveal all the particulars regarding O.S. No. 5832/1991.

¶99

Admittedly, the case of the plaintiff is that he has purchased the suit schedule property in the year 1996, and he derives title to the same from the defendant in O.S. No. 5832/1991. The case of the defendants No.3 and 4 is that they derive title to the property from the plaintiff in OS No.5832/1991 and they have in turn, sold the same to defendant No.6. In the light of the same, to resolve the dispute between plaintiff and defendants, a bare injunction suit may not suffice and the plaintiff is required to pray for a decree of declaration. For that reason, the amendment to the plaint as sought for by the plaintiff becomes just and necessary and it is essential to determine the real dispute between the parties. No doubt, the defendants have a right to take up all necessary defences including that of lis pendens and also limitation against the plaintiff.

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The Hon'ble Supreme Court in DINESH GOYAL ALIAS PAPPU V. SUMAN AGARWAL(BINDAL) AND OTHERS reported in AIR 2024 SC 4779 at Para

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Nos.11,12,13,14 and 15 has held as under.

¶104

11. At this juncture, before proceeding to the merits of the case, let us consider the law relating to the amendments of pleadings.

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11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das⁶ it was held as under:

¶106

“16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment

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¶109

would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166.]”(AIR Online 1989 SC 42)

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11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd .⁷ , after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:—

¶111

(i) 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.

¶112

(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side.

¶113

(iii) Amendments, while generally should be allowed, the same should be disallowed if -

¶114

(a) 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.

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16 -

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(b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations)

¶118

(c) The amendment completely changes the nature of the suit;

¶119

(d) The prayer for amendment is malafide,

¶120

(e) By the amendment, the other side should not lose a valid defence.

¶121

(iv) Some general principles to be kept in mind are -

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(I) The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs.

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(II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.

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(III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint.

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12. The question that we have to consider, in the above backdrop is whether the High Court fell in error in allowing the application seeking leave to amend pleadings, in contravention of the statutory language.

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13. By way of the amendment, what is sought to be done is, to question the validity of the Will, on the basis of which, the defendant sought to have the suit dismissed, while also expanding the scope of adjudication of the suit to include movable property. It has to be then, demonstrated that - (a) determination of the genuineness

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17 -

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

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of the Will is the necessary course of action in determining the issues inter se the parties; and (b) given the finding of the court below that the application was presented post the commencement of the trial, it could not have been, despite due diligence, presented prior to such commencement.

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14. Be that as it may, the overarching Rule is that a liberal approach is to be adopted in consideration of such applications. [See also : Sanjeev Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd .⁸ ; Usha Balasaheb Swami v. Kiran Appaso Swam i⁹ ; B.K. Narayana Pillai v. Parmeswaran Pilla i¹⁰ ]

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15. In our considered view, the two aspects required to be demonstrated in accordance with the statutory language in the present facts, do not stand on the same footing. The first issue will necessarily have to weigh over the second.

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In the light of the above, in the instant case also, to determine the real controversy between the parties, it is essential to understand the implication of the judgment and decree passed in OS No. 5832/1991. In the light of the same, I

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do not see any error in the order passed by the Trial Court. Accordingly, writ petitions are hereby dismissed for the said reasons.

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NC: 2025:KHC:13506 WP No. 47866 of 2019 C/W WP No. 40423 of 2019

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