JETUNABI vs SALAVUDDIN AND ORS

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CNR: KAHC030219062020



IN THE HIGH COURT OF KARNATAKA



KALABURAGI BENCH

TH
DATED THIS THE 9 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

WRIT PETITION NO.200782 OF 2021 (GM-CPC)


BETWEEN:

1. JETUNABI W/O ABDULGAFUR SURAKHI,
AGE: 86 YEARS, OCC: RETIRED,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

2. AMINUDDIN S/O ABDULGAFUR SURAKHI,
AGE: 61 YEARS, OCC: BUSINESS,
R/O. VIJAYPUR.

3. FAIYAJAHMED S/O ABDULGAFUR SURAKHI,
AGE: 66 YEARS, R/O. KAMANKAN BAZAR,
SURAKHI GARDEN, VIJAYPUR.

4. USMAN S/O ABDULGAFUR SURAKHI,
AGE: 53 YEARS, OCC: CENTERING WORK,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

5. NAJIR S/O ABDULGAFUR SURAKHI,
AGE: 51 YEARS, OCC: CENTERING WORK,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

6. MAHIBUB S/O ABDULGAFUR SURAKHI,
AGE: 49 YEARS, OCC: CENTERING WORK,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.










Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA

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7. ALLABAKSH S/O ABDULGAFUR SURAKHI,
AGE: 46 YEARS, OCC: CENTERING WORK,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

8. DAVUDI D/O ABDULGAFUR SURAKHI,
AGE: 61 YEARS, OCC: HOUSE WIFE,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

9. MAMATAJ D/O ABDULGAFUR SURAKHI,
AGE: 48 YEARS, OCC: HOUSEWIFE,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

10. SHAHANAJ D/O ABDULGAFUR SURAKHI,
AGE: 41 YEARS, OCC: HOUSEWIFE,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.

11. SHABANA D/O ABDULGAFUR SURAKHI,
AGE: 39 YEARS, OCC: HOUSEWIFE,
R/O. KAMANKAN BAZAR, SURAKHI GARDEN,
VIJAYPUR.


…PETITIONERS
(BY SRI. H.M.PATEL, ADVOCATE)

AND:

1.





1(A)
SALAVUDDIN
S/O ABDULKHADAR MOINUDDIN SURAKHI,
AGE: 80 YEARS, OCC: RETIRED,
TH ND
R/O. H.N. 7, 8 CROSS, 2 MAIN,
BENGALURU-37.

SIRAJUDDIN S/O SALAVUDDIN SURKHI,
AGE: 57 YEARS, OCC: SERVICE.

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1(B) SYED ZAHEERUDDIN
S/O SALAVUDDIN SURKHI,
AGE: 55 YEARS, OCC: SERVICE.

1(C) VIKRAUDDIN
S/O SALAVUDDIN SURKHI,
AGE: 53 YEARS, OCC: SERVICE.

1(D) FAHEEMUDDIN
S/O SALAVUDDIN SURKHI,
AGE: 51 YEARS, OCC: SERVICE.

1(E) ZAKIRUDDIN
S/O SALAVUDDIN SURKHI,
AGE: 48 YEARS, OCC: SERVICE.

1(F) TABASSUMSULTANA
D/O SALAVUDDIN SURKHI,
AGE: 45 YEARS, OCC: HOUSEWIFE.

1(G) KURSHID BANU
W/O SALAVUDDIN SURKHI,
AGE: 59 YEARS, OCC:HOUSEWIFE.

1(H) IMRAN NAZEER
S/O SALAVUDDIN SURKHI,
AGE: 26 YEARS, OCC: SERVICE.

1(I) KAMRAN ASHRAF
S/O SALAVUDDIN SURKHI,
AGE: 23 YEARS, OCC: PVT SERVICE,

TH
ALL R/O. H. NO 7, 8 CROSS,
RAMESH NAGAR,
BENGALURU- 560037.

AMENDMENT CARRIED OUT AS PER
ORDER OF THE HON’BLE COURT
DATED 09.10.2026

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2. NASARODDIN
S/O ABDUL KHADAR MOINUDDIN SURAKHI,
AGE: 66 YEARS, OCC: RETIRED,
R/O. FIRST FLOOR,
SPECTRUM SQUIRE APARTMENT,
TH
6 CROSS, MAIN LB SHASTRI NAGAR,
HAL, BENGALURU.

3. HAFIJAVUDDIN
S/O ABDUL KHADAR MOINUDDIN SURAKHI,
AGE: 64 YEARS, OCC: RETIRED,
R/O. HOUSE, NO.5,
RD
3 CROSS, KHB MAIN ROAD,
KAWAL BAI SUNDRA R.T. NAGAR,
BENGALURU-32.

…RESPONDENTS

(BY SRI. KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE
FOR R1(A) TO R1(I), R2 & R3)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE THE WRIT
OF CERTIORARI QUASHING THE IMPUGNED ORDER ON I.A.VI
VIDE ANNEXURE (A) DATED 15.09.2020 PASSED IN
O.S.NO.609/2019 BY THE HON’BLE PRINCIPAL CIVIL JUDGE
VIJAYPUR.

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

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL ORDER

1. This writ petition is filed challenging the order dated
15.09.2020 passed on I.A.No.VI in O.S.No.609/2019
by the Principal Civil Judge, Vijayapura.

2. Brief facts giving rise to filing of this petition are as
under:
The respondents filed a suit for permanent and
mandatory injunction alleging that the petitioners
have made an encroachment in ABEF portion of the
suit schedule property as shown in sketch map. The
petitioners have filed their written statement denying
the averments made in the plaint. The respondents
have filed an application under Order VI Rule 17 of
CPC seeking amendment to the plaint alleging that
the petitioners have filed written statement denying
the title of the plaintiffs. Hence, it has become
necessary for the respondents to file an application
to amend the plaint. The said application was

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opposed by the petitioners by filing objections
contending that the proposed amendment would
change the nature of case and cause of action,
hence, prayed to reject the application. The Trial
Court, after hearing the learned counsel for the
parties, allowed the application vide order dated
15.09.2020. Hence, this writ petition.

3. Heard the arguments of learned counsel for the
petitioners and learned counsel for the respondents.

4. Learned counsel for the petitioners submits that the
proposed amendment changes the nature of case
and cause of action. The Trial Court could have
rejected the application, on the contrary allowed the
application. Hence, the impugned order passed by
the Trial Court is arbitrary and erroneous.
Accordingly, he prays to allow the writ petition.
Per contra
5. , learned counsel for the respondents
submits that the application for amendment is filed

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prior to commencement of trial. To buttress his
arguments he places reliance on the judgment of the
Hon’ble Apex Court in the case of Rajesh Kumar
1
Agarwal and others V. K.K.Modi and submitted
that the amendment cannot be claimed as a matter
of right under all circumstances. He submitted that
the application is filed after commencement of trial.
The party must show that despite due diligence, he
could not raise proposed issues in the original
pleadings. Hence, he submits that the Trial Court
was justified in passing the impugned order and
prays to dismiss the writ petition.

6. Perused the records and considered the submissions
of the learned counsel for the parties.

7. It is an undisputed fact that the respondents have
filed a suit for permanent and mandatory injunction
alleging that the petitioners have made

1
(2006) 4 SCC 385

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encroachment in the suit schedule property. The
petitioners filed written statement denying the
averments made in the plaint and when the matter
was posted for framing of issues, at that stage, the
respondents have filed an application to amend the
plaint seeking relief of possession. Admittedly, the
said application was filed before commencement of
trial. In view of the proposition of law laid down by
the Hon’ble Apex Court in the case of Rajesh Kumar
Agarwal (supra) that if an application filed prior to
commencement of trial, the Court can allow the
application. But it is filed after the commencement
of trial. The parties must show due diligence that he
could not be able to raise the proposed amendment
in the original pleadings. The Trial Court has placed
reliance on the decision of this Court in the case of
2
Smt.Khuthejabi vs. Fayaz Khan and Another .
Upon perusal of the proposed amendment, it is

2
2013 (4) KLJ 295

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evident that it neither changes the nature of the suit
nor alters the cause of action. Therefore, the Trial
Court was justified in passing the impugned order.
Hence, I do not find any ground to interfere with the
impugned order.

8. Accordingly, I proceed to pass the following:
ORDER
i. Writ petition is dismissed .

Sd/-
(ASHOK S. KINAGI)
JUDGE



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