Sri. Subbramanya Shastri Vs Smt. Girijamba Since Deceased

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 1840 OF 2022 (GM-CPC)

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BETWEEN:

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SRI. SUBBRAMANYA SHASTRI S/O LATE RAMASUBBA SHASTRI, AGED ABOUT 84 YEARS, R/AT BRAHAMIN STREET, DODDABALLAPUR-561 203. BENGALURU RURAL DISTRICT. AND ALSO R/AT NO.31, VINAYAKA LAYOUT, 3^RD CROSS, HEBBAL, KEMPAPURA, BENGALURU-560 024.

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…PETITIONER

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(BY SRI. KRISHNA.B.J., ADVOCATE)

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AND:

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SMT. GIRIJAMBA SINCE DECEASED REP BY HER LR’S

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SRI D.S. SATHISH KUMAR, S/O LATE GIRIJAMBA, AGED ABOUT 50 YEARS, R/AT NO.234, BRAHAMIN STREET, DODDABALLAPURA TOWN-561 203. BENGALURU RURAL DISTRICT.

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SRI. D.S. RAVIKUMAR S/O LATE GIRIJAMBA, AGED ABOUT 48 YEARS, R/AT NO.234, BRAHAMIN STREET, DODDABALLAPURA TOWN-561 203.

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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BENGALURU RURAL DISTRICT.

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SRI. D.S.HARIKUMAR S/O LATE GIRIJAMBA, AGED ABOUT 41 YEARS, R/AT NO.234, BRAHAMIN STREET, DODDABALLAPURA TOWN-561 203. BENGALURU RURAL DISTRICT.

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SMT. D.S.SAVITHA D/O LATE GIRIJAMBA, AGED ABOUT 44 YEARS, R/AT NO.234, BRAHAMIN STREET DODDABALLAPURA TOWN-561 203. BENGALURU RURAL DISTRICT.

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SRI. RAMAKRISHNA S/O RANGA RAO, C/O SUBRAMANYA SHASTRI, AGED ABOUT 52 YEARS, R/AT NO.233, BHARMIN STREET, DODDABALLAPURA -561 203. BENGALURU RURAL DISTRICT.

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…RESPONDENTS

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(BY SRI. V.ANAND., ADVOCATE FOR R1, R2 & R4 [ABSENT]; R5-SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD.11.01.2022 PASSED ON IA FILED BY THE RESPONDENTS UNDER ORDER VI RULE 17 OF CPC PASSED IN O.S.NO.257/2011 WHICH IS PENDING ON THE FILE OF LEARNED PRL. CIVIL JUDGE AND JMFC AT DODDABALLAPUR VIDE ANNEXURE-F, ETC.

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL ORDER

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The present petition seeks to challenge an order dated 11.01.2022 passed by the learned Principal Civil Judge and JMFC, Doddaballapura, on I.A. in O.S.No.257/2011 [hereinafter referred to as the “Impugned Order”]. By the Impugned Order, the respondents’/plaintiffs’ application under Order VI Rule 17 of the Code of Civil Procedure, 1908 [hereinafter referred to as the “CPC”] was allowed by the learned Trial Court after the commencement of the trial.

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The learned counsel for the petitioners/defendants submits that he has filed a memo on 08.03.2022, stating that respondent No.3 has died leaving respondent Nos.1, 2 and 4 as legal representatives and that there are no other legal representatives.

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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The memo is taken on record. The amendment to

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the cause title is allowed.

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None appears for the respondents/plaintiffs, despite service.

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Given the fact that there is an interim order operating since 31.01.2022, staying the further proceedings before the learned Trial Court and given the limited issue involved, this Court deems it apposite to hear and decide the matter today.

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The only ground of challenge raised by the petitioner/defendant No.1 in the present petition is that the proviso to Order VI Rule 17 of the CPC which requires that due diligence be exercised, prior to allowing an application while the trial is pending, has not been examined. It is contended that the learned Trial Court has not given finding in respect thereof, despite the fact that the trial has already commenced.

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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The learned counsel for the petitioner/defendant

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No.1 seeks to rely upon an application which has been filed by the respondents/plaintiffs, in this behalf.

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A perusal of the application filed by the respondents/

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plaintiffs shows that the affidavit accompanying the application itself contains an averment that, at the time the matter was posted for final arguments and the crossexamination of the defendants’ witnesses was complete, the application was filed. The affidavit, being brief, is extracted below:

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“2. I submit that the above matter is posted for final arguments. Earlier to that the matter was posted for Cross examination of DW.1 was completed on 3/3/2021 and the matter is posted for Defendant side further evidence accordingly the Defendant has filed list of witness and on the date of filing of that application I and my counsel were unable to present before the Hon'ble Court. Subsequently I filed application under XVIII, Rule 17 to recall the Dw.1 for further cross examination. But unfortunately the said application came to be dismissed by this Hon'ble Court.

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3. I submit that, while preparing for final arguments it is noticed that the Defendant No.1 for the first time in his Written Statement averred that Smt. Parvathama has executed Will on 21/8/1998. This fact was not denied or disputed in the plaint by us. Now this mistake is un noticed by me and my counsel. Now the said point to be added through this amendment. Hence this application.

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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4. I submit that, now during the Cross examination of Dw.1 it is revealed by the Dw.1 that he has filed P&SC case and he obtained probate on the Will. On that point also I have collected several material facts to establish that order is obtained by the Dw.1 in fraudulent manner. Hence this amendment is very much necessary to safe guard the interest of the plaintiffs in the present suit. the Details of P&SC case details were not stated in the written statement and neither produced any documents pertaining to said case before this Hon'ble Court. Hence, the proposed amendment is very much necessary. To avoid further litigations in future. Comprehensive order is required on that point also.

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5. I submit that no harm or hardship will be caused to Defendants, on the other hand if the application is not allowed, I will be put to great hardship. Since I had very good chance to succeed in the above case and nature of the suit will not change.”

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[Emphasis Supplied]

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The proposed amendment that was sought for in the application was the amendment of the plaint and to include an additional prayer in the prayer column of the plaint.

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The learned Trial Court, however, by the Impugned Order, has allowed the application. A perusal of the Impugned Order shows that proviso to Order VI Rule 17 of the CPC has completely been given a go-by. The proviso

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to Order VI Rule 17 of the CPC sets out that an

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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amendment should not be allowed once the trial in the matter 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 a

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trial. Order VI Rule 17 of the CPC is set out as under:

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“17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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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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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[Emphasis supplied]

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It is no longer res integra that, ordinarily, the Courts should be liberal while granting amendments, except when the trial has commenced and once the trial has commenced, the applicant requires to show that the application could not have been filed earlier, despite due diligence. The affidavit, which is re-produced in paragraph 8 above, in support of the application does not fulfil this

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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requirement at all. The affidavit just states that the amendment is necessary to safeguard the interest of the respondents/plaintiffs, to avoid future litigation and that the respondents/plaintiffs would be put to hardship, if the amendment is not allowed. Not a single averment has been made in the application as to why this application could not be filed earlier in terms of the proviso to Order VI Rule 17 of the CPC.

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The Supreme Court, in the case of Vidyabai v. Padmalatha¹ , held that the applicant was unable to show that he had exercised due diligence and the amendment could not have been allowed. The relevant extract is set out below:

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“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:

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“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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1 (2009) 2 SCC 409

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NC: 2026:KHC:7575 WP No. 1840 of 2022

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HC-KAR

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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.”

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[Emphasis Supplied]

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