Sri Shrishail S/O Hanamant Kanti vs Smt Mahadevi D/O Hanamant Kanti

-1- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 26TH DAY OF NOVEMBER, 2024

BEFORE THE HON'BLE MR. JUSTICE C.M. POONACHA

WRIT PETITION NO.102454 OF 2024 (GM-CPC)

BETWEEN:

1. SRI SHRISHAIL S/O. HANAMANT KANTI, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ :JAMKHANDI DIST: BAGALKOT - 587 301.

2. SRI SHIVALINGAPPA S/O. HANAMANT KANTI, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

3. SRI KAREPPA S/O. HANAMANT KANTI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

4. SRI ASHOK S/O. HANAMANT KANTI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, Digitally signed by SAROJA DIST: BAGALKOT - 587 301. HANGARAKI Location: High Court of Karnataka 5. SRI BASAVARAJ S/O. HANAMANT KANTI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

6. SRI RAMAPPA S/O. HANAMANT KANTI, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301. ...PETITIONERS (BY SRI ANIL KALE, ADVOCATE) -2- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

AND:

1. SMT. MAHADEVI D/O. HANAMANT KANTI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

2. SMT. LAXMIBAI W/O. HANAMANT MALALI, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: UTTUR, TQ: MUDHOL, DIST: BAGALKOT - 587313.

3. SMT. CHANNAWWA W/O. BASARADDI MADALLI, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: HEBSUR, TQ: HUBBALLI, DIST: DHARWAD - 581 209.

4. SMT. SAVITRI W/O. VISHALRADDI KUNCHANU,R AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSUR, TQ: VIJAYAPUR, DIST: VIJAYAPUR - 586 113.

5. SRI LAXMAN S/O. HANAMANT KANTI, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

6. SRI SHIVAPUTRA S/O. HANAMANT KANTI, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

7. SMT. TUNGAWWA W/O. HANAMANT KANTI, AGE: 76 YEARS, OCC: HOUSEHOLD WORK, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301.

8. SMT. VIDYAWATI W/O. ASHOK KANTI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: BUDNI, TQ: JAMKHANDI, DIST: BAGALKOT - 587 301. -3- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

9. SRI GIRISH S/O. VENKATAPPA ARAKERI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: DEVARGENNUR, TQ: VIJAYAPUR. DIST: VIJAYAPUR - 586 125.

10. SHRI BASAPPA S/O. HANAMANT HULAKUNDA, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: TEACHERS COLONEY, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT - 587 313. ...RESPONDENTS (BY SRI GIRISH A. YADAWAD AND SMT. DIVYA DESHPANDE, ADVOCATES FOR R1 TO R4; NOTICE ISSUED TO R5 TO R10 ARE SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227

OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN

THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER

DATED 15-04-2024 PASSED BY THE ADDITIONAL SENIOR CIVIL

JUDGE, JAMKHANDI ON I.A NO. 38 IN O.S.NO. 64/2018 PRODUCED

AT ANNEXURE-F, IN THE INTEREST OF JUSTICE AND EQUITY.

DISMISS THE APPLICATION IN IA NO.38 FILED IN O.S. NO. 64/2018

BY PLAINTIFFS/ RESPONDENTS NO. 1 TO 4, IN THE INTEREST OF

JUSTICE AND EQUITY AND ETC.,

THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER: -4- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present writ petition is filed calling in question the

order dated 15.04.2024 passed on I.A No.XXXVIII under

Order VI Rule 17 R/w Section 151 of the Code of Civil

Procedure, 19081 in O.S No.64/2018 by the Court of

Principal Senior Civil Judge and JMFC, Jamkhandi2.

2. The relevant facts in a nutshell leading to the

present writ petition are that the respondent Nos.1 to 4

instituted a suit in O.S No.64/2018 for partition and other

reliefs. The defendants entered appearance before the

Trial Court and contested the same. When the matter was

posted for judgment, the plaintiff filed I.A No.XXXVIII

under Order VI Rule 17 R/w Section 151 of the CPC to

amend the plaint. The said application was opposed by the

defendants. The Trial Court, by its order dated

15.04.2024, allowed the application on cost of ₹1,000/-.

1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'Trial Court' -5- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

Being aggrieved, the present writ petition is filed by the

defendant Nos.1 to 6.

3. Heard submissions of learned counsel Sri.Anil

Kale for the petitioners/defendant Nos.1 to 6 and learned

counsel Sri.Girish.A.Yadawad for the respondent Nos.1 to

4/plaintiffs. Perused the writ petition papers.

4. It is the vehement contention of the learned

counsel for the petitioners that after the trial of the suit

was concluded, when the matter was reserved for

judgment, and after the suit was adjourned on nine

occasions for rendering of the judgment, the Trial Court

vide order dated 31.01.2024 set out certain clarifications

and for further arguments. Consequent to the same, the

plaintiff filed I.A No.IIIVIII under Order VI Rule 17 R/w

Section 151 of the CPC, which was allowed by the Trial

Court. It is contended that the course of action adopted by

the Trial Court is unsustainable in law. It is further

contended that vide the proposed amendment made in I.A

No.IIIVIII, the plaintiff sought to aver regarding -6- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

incorporation of R.S No.416/8 measuring 05 gunta, to

incorporate paragraph No.5a in the plaint with regard to

one of the suit properties i.e., R.S No.41/2PÀ being acquired

and with regard to the names of certain other persons

being mentioned in the revenue records of one of the suit

properties i.e., R.S No.94/3.

5. It is contended that one of the suit properties

having been acquired, the amendment would change the

nature of the suit and that by virtue of the amendment,

various defences asserted by the defendants in the main

suit have been attempted to be overcome. Hence, learned

counsel seeks for allowing of the writ petition and granting

of the reliefs sought for.

6. Per contra, learned counsel, Sri.Girish A

Yadawad appearing for respondent Nos.1 to 4/plaintiffs

justifying the order passed by the Trial Court, contends

that the averments in the plaint have been made with

regard to R.S.No.416/A and only in the schedule to plaint,

the said property has not been incorporated. It is further -7- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

contended that the aspect regarding one of the suit

properties having been acquired and the compensation

being deposited is not in dispute and hence the

amendment with regard to the same is just and proper. It

is further contended that the amendment made in respect

of the names of other persons reflecting with regard to

R.S.No.94/3 is only clarificatory nature to the extent of the

share of the plaintiffs. Hence, it is contended that the Trial

Court having exercised its discretion in granting the

amendment and recording a finding that the amendment

is necessary for the proper and final adjudication of the

suit and the suit being one for partition, the Trial Court

was justified in allowing the amendment which ought not

to be interfered with by this Court in the present writ

petition.

7. Both the learned counsel have referred to the

various judgments which shall be referred to during the

course of this order.

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8. The submissions of both the learned counsel

have been considered and the writ petition papers have

been perused.

9. It is forthcoming that the suit for partition filed

by respondent Nos.1 to 4/plaintiffs was contested by the

defendants and after trial, the suit was reserved for

judgment on 09.11.2023. Thereafter, the suit was

adjourned to 28.11.2023, 08.12.2023, 15.12.2023,

21.12.2023, 08.01.2024, 16.01.2024, 22.01.2024,

25.01.2024 and 30.01.2024 i.e., nine dates of hearing

when the judgment was not rendered. Thereafter, on

31.01.2024, the Trial Court ordered as follows:

"Case called out.

No representation.

The plaintiffs, defendants & their respective counsels are absent.

On perusal of the pleadings and the records, it is seen that, as per Ex.P-26 RTC for the year 2017-18, the suit schedule property bearing R.S.No.94/3, measuring 1 acre situated at Konnur village is jointly standing in -9- NC: 2024:KHC-D:17334 WP No. 102454 of 2024

the name of plaintiffs, defendants No.1 to 9 & other persons namely

1) Hanamant S/o.Chanamallappa Kanti,

2) Gangavva W/o.Mallappa Kanti,

3) Parappa S/o.Mallappa Kanti,

4) Ramesh S/o.Mallappa Kanti,

5) Rachappa S/o.Mallappa Kanti,

6) Siddappa S/o.Mallappa Kanti,

7)Irappa S/o.Mallappa Kanti.

The aforesaid persons are necessary parties to the suit, but the plaintiffs have not arrayed them as parties to the suit. Further no any specific explanation is given in the plaint in this regard.

Further the plaintiffs have asserted in plaint paragraph No.5 that, land R.S.No.416/8 totally measuring 5A-33G of Konnur village is purchased out of joint family funds. In plaint paragraph No.3, the extent of said suit schedule property is shown only 5A-28G as suit schedule property. As per Ex.P-21 certified copy of sale deed dated 25-01-2016, the defendants No.2 & 4 have jointly purchased the land R.S. No.416/3A, measuring 5A-28G & R.S.No.416/8, measuring 5 gunta under the same sale deed. In the plaint, R.S.No.416/8, measuring 5 gunta is not shown as suit schedule property.

Further as per deposition of DW-6 i.e., defendant No.9, the suit schedule property bearing R.S. No.41/2ಕ,

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measuring 2A-17G is acquired by SLAO under Upper Krishna Project & deposited the compensation amount in LAC No.2012/2020 on the file of 1st Addl. District & Sessions Judge, Bagalkot sitting at Jamakhandi. Ex.D-82 certified copy of order sheets in LAC No.2012/2020 disclose that, the suit schedule property R.S.No.41/2ಕ, measuring 2A-17G is involved in the said case. But the plaintiffs have shown said suit schedule property in the plaint as if it is available for partition.

Hence, it is just & necessary to call for clarification from the counsels appearing for the parties to the suit before passing Judgment.

For clarification & further arguments on aforesaid aspects.

Call on 02-02-2024."

10. Consequent to the same, the plaintiffs filed

I.A.No.38 on 09.02.2024.

11. In the affidavit filed in support of the

application, the reasons set out by the plaintiffs for the

proposed amendment is extracted herein for ready

reference:

"3) That I fairly submits due to clerical mistake and due to oversight the above noted facts and

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information's not furnished to my council. Just I learnt this fact about bonafide error found at body of the plaint after go through the order passed by this Hon'ble court, without further delay I am going to file is application for amendment. It is much necessary for passing effective judgment.

4) No nature of suit will be changed if my I.A is accepted, No loss would be caused to the other side if my prayer is accept if not I will put great hardship and irreparable loss."

(emphasis supplied)

12. Order 6 Rule 17 of CPC reads as follows:

"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:

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."

(emphasis supplied)

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13. In the case of Life Insurance Corporation of

India vs. Sanjeev Builders Private Limited and

Another3 relied upon by the learned counsel for

respondent Nos.1 to 4, the Hon'ble Supreme Court

considering the various judgments has summed up the

conclusion as to the legal position with regard to

amendments, wherein it is held as follows:

"70. Our final conclusions may be summed up thus:

i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

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

3 2022 16) SCC 1

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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) the 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. the amendment changes the 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

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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, the 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.

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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."

(emphasis supplied)

14. In the case of S.Satnam Singh and Others

vs. Surender Kaur and Another4 relied upon by the

learned counsel for the respondent Nos.1 to 4, the Hon'ble

Supreme Court has held as follows:

"20. Indisputably, Section 97 of the Code of Civil Procedure provides for an appeal against preliminary decree but the said provision, in our opinion. would not be a bar to file an application for amendment of a decree.

4 2009 (2) SCC 562

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21. The court may not have a suo motu power to amend a decree but the same would not mean that the court cannot rectify a mistake. If a property was subject matter of pleadings and the court did not frame an issue which it ought to have done, it can, at a later stage, when pointed out, may amend the decree.

22. The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it has committed.

23. The issues were not correctly framed. An additional written statement was permitted to be filed. A replication thereto also was allowed. It was in that situation, the question as to whether the business transaction of Bombay Cycle Company could be a subject matter of the suit for partition or not was required to be determined on its own merits.

24. The Trial Court felt that it had committed a mistake. In such a situation, the court, in our opinion, committed no infirmity in directing rectification of its mistake."

(emphasis supplied)

15. In the case of Basavaraj vs. Indira and

Others5 relied upon by the learned counsel for the

5 2024 (3) SCC 705

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petitioners/defendants, the Hon'ble Supreme Court

considering the reasons assigned for seeking an

amendment, has held as follows:

"6.1. During the pendency of the suit, an amendment was carried out by respondents No. 1 and 2 to implead respondent No. 4 in the suit who was the purchaser of a part of the suit property. The same was allowed on 01.07.2006. Thereafter, trial of the suit continued. When it reached at the stage of arguments in February 2010 an application was filed by respondents No. 1 and 2 seeking amendment of the plaint. The reasons assigned to file the belated application seeking amendment of the plaint were that due to oversight and by mistake, the respondents No.1 and 2 failed to seek relief of declaration of the compromise decree being null and void and were unable to deposit the court fee."

(emphasis supplied)

15.1. Further, in the said case, the Hon'ble Supreme

Court considering the scope of Order VI Rule 17 has held

as follows:

"8. Proviso to Order VI Rule 17 CPC provides 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. In the case in hand, this is not even the pleaded

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case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.

9. This Court in M. Revanna v. Anjanamma (Dead) by legal representatives and others11 opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order VI Rule 17 C.P.C. prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Paragraph No. 7 thereof is extracted below:

"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the (2019) 4 SCC 332 trial

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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. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."

(emphasis supplied)"

16. Keeping in mind the legal position as noticed

above, it is relevant to note that the Trial Court while

considering I.A.No.38 has recorded the following findings:

"9. Admittedly, the plaintiffs have not given any explanation with regard quarries raised by this court through its order dated 31.01.2024 at the time of

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presentation of the plaint. They have filed this application at belated stage. Upon going through the pleadings, documents, contents of proposed amendment and all other materials on record, this court is of opinion that, the narration of facts, which have been stated in the proposed amendment are necessary for proper and final adjudication of the matter in dispute. As per proposed amendment the plaintiffs want to incorporate the land RS.No.416/8 measuring 05 gunta as suit schedule property. It is to note that, in plaint paragraph No.5, the plaintiffs have already stated the suit schedule property land RS.No.416/8 is joint family property, but it is not shown as suit property. Further the plaintiffs want to give some material clarification as to non- joinder of necessary parties as observed by this court. Further they want to give clarification as to acquisition of the suit land bearing RS.No.41/2 ಕ and same was involved in LAC No.2012/2020 on the file of Hon'ble 1st Addl. District & Session Judge, Bagalkot sitting at Jamkhandi. Considering the pleadings, evidence & all other materials on record, this court is of considered opinion that, since the present suit is suit for partition & separate possession, the proposed amendment is very much necessary for proper & final adjudication of the matter. It is also necessary for determination of rights of the parties. As stated above, admittedly the plaintiffs have filed this application at belated stage. However having regard to the reasons stated supra, if above application is allowed on reasonable costs, no harm or prejudice would be caused to the defendants. In view of

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above discussion, Point No.1 is answered in the affirmative.

(emphasis supplied)

17. At this juncture, it is also relevant to note the

proposed amendments sought to be made by the plaintiffs

which was annexed along with the I.A.No.38 which is

extracted hereunder for ready reference

"PROPOSED AMENDMENT SLIP

Herein the proposed amendment slip on behalf of plaintiffs is as under:

1) To induct the land bearing R.S.No.416/8 measuring 5gunta assessment 0.21paisa of Konnur village at suit schedule part.III SL.No.6.

2) After completion of para No.5 of the plaint insert a new para as 5A) The suit land R.S.No.41/2C measuring 2A.17Gunta assessment 4.58Paise of Budni village acquired for purpose of UKP project, due to dispute the (UKP), Jamkhandi deposited the award amount U/S 76,77 of new land acquisition act 2013 before 1st Addl. District and Session Judge Jamkhandi in LAC.No.2012/2020. So that property is not in existence/ not available for partition. Now the question is in respect of acquired property is to decide the rights over the deposited amount to the extent of 1/12th each except defendant No.1. The

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suit land R.S.No.94/3 total measuring area to the extent of 4Acre 1gunta assessment 2R.67paise situated at Linganur village which is suit schedule property at part 1st SL.No.1. Therein to the extent of 1A.13gunta only belongs to family of plaintiffs and defendants. Remaining entire portion belongs to the Co-shares their names have been appearing in to record of rights already marked as Ex.P.27 because of non effecting a Podi at land records. Yet that land is in joint. But in fact other Co-sharers have no right title and interest to the extent of 1A.13Gunta l,e 1/3rd share remaining 2/3rd share belongs to the Co. sharers. So they are not necessary parties to this suit as such plaintiffs have not made as a parties to present case."

18. It is forthcoming from the order of the Trial

Court that after noticing the proposed amendment sought

to be made, the Trial Court has recorded a finding that the

proposed amendments are necessary for the proper and

final adjudication of the matter and is necessary for

determination of the rights of the parties.

19. The stipulation contained under Order VI Rule

17 of the CPC specifically mandates that no application for

amendment shall be allowed after the trial has

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commenced unless the Court has come to the conclusion

that in spite of due diligence the party could not have

raised the matter before the commencement of the trial.

In the present case, the only reasons set out by the

plaintiffs is at para nos.3 and 4 of the affidavit which has

been extracted at para no.11 hereinabove is that the

plaintiffs have merely stated that due to clerical mistake

and due to oversight the information was not furnished to

the counsel and that the plaintiffs having learnt of the

bonafide mistake, have filed the application for

amendment.

20. It is pertinent to note that in the present case,

it is not that the plaintiffs have filed the application for

amendment on their own motion having learnt of the

clerical mistakes. The Trial Court having posted the matter

for judgement and having adjourned the matter at that

stage on 9 occasions, vide order dated 31.01.2024 set out

various aspects on which clarification was sought. It is

subsequent to the said order dated 31.01.2024 that the

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application for amendment was filed on 09.02.2024.

Hence, it is clear that in the guise of offering a clarification

as sought for by the Trial Court at the stage of rendering

its judgment, the application for amendment has been

filed. Even in the said affidavit accompanying the

application, no reasons have been set out to satisfy the

proviso in Order VI Rule 17 of the CPC as to why the

proposed amendment could not be stated prior to the

commencement of the trial.

21. It is further relevant to note that the aspects

that are sought to be amended were already adduced by

the defendants in the course of their evidence. This aspect

of the matter is forthcoming from a portion of the order

dated 31.01.2024, where reference is made to the

deposition of DW.6 regarding the suit property having

been acquired.

22. The effect of the amendment would be to revert

the suit to the stage of commencement of the trial after

giving an opportunity to the defendants to file their

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additional written statement. The said course of action

evidently causes great hardship to the defendants, who

have contested the suit and set out a defence on the

merits of the matter in respect of which the final

arguments have also been addressed.

23. Although it is the vehement contention of the

learned counsel for respondent Nos.1 to 4 that having

regard to the guidelines laid down by the Hon'ble Supreme

Court in the case of Life Insurance Corporation of

India3 that the amendment is required to be granted at

any stage of the proceedings and even at the stage of

appeal, it is relevant to note that in the case of Life

Insurance Corporation of India3, the Hon'ble Supreme

Court was considering a fact situation wherein the

principal argument put forth was that the amendment

application was barred as under Order II Rule 2 of the

CPC. The judgment in the case of S.Satnam Singh4 will

not aid the case of the plaintiffs as in the said case the

Hon'ble Supreme Court was dealing with a fact situation of

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the Court correcting its own mistake. The judgment of the

Hon'ble Supreme Court in the case of Basavaraj5 with

regard to the proviso to Order VI Rule 17 of the CPC is

squarely applicable to the facts of the present case.

24. The plaintiffs having filed the application for

amendment, were duty bound to satisfy the proviso to

Order VI Rule 17 of the CPC.

25. Although the Trial Court has recorded a finding

that the amendment is necessary for the proper and final

adjudication of the matter, the Trial Court has misdirected

itself in not satisfying itself with regard to the specific

requirement in the proviso to the Order VI Rule 17 of the

CPC as also vis-a-vis the specific defence that has been

set out by the defendants in the suit.

26. In view of the aforementioned, the course

adopted by the Trial Court in favourably considering

I.A.No.38 itself being unknown to law was clearly

erroneous and liable to be interfered with.

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27. Hence, the following:

ORDER

i. The writ petition is allowed;

ii. The order dated 15.04.2024 passed on I.A.No.38

in O.S.No.64/2018 by the Additional Senior Civil

Judge, Jamkhandi is set aside;

iii. I.A.No.38 filed by the plaintiff in O.S.No.64/2018

on the file of Additional Senior Civil Judge,

Jamkhandi stands dismissed.

SD/-

(C.M. POONACHA) JUDGE

PMP - para up to 5 SH/CT-ASC List No.: 1 Sl No.: 25