MAHADEVAPPA S/O IRAPPA AKKI AND ORS vs SHIVASHANKAR S/O IRAPPA AKKI AND ORS
- Court
- Karnataka High Court
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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.201321 OF 2023 (GM-CPC)
BETWEEN:
1. MAHADEVAPPA S/O IRAPPA AKKI,
AGED ABOUT 60 YEARS, OCC: AGRICULTURE,
R/O. BIJJARAGI VILLAGE, TQ. TIKOTA,
DIST. VIJAYAPURA-586101.
2. SHIDAPPA S/O IRAPPA AKKI,
AGED ABOUT 56 YEARS, OCC: AGRICULTURE,
R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
3. SOMANING S/O IRAPPA AKKI,
AGED ABOUT 54 YEARS, OCC: AGRICULTURE,
R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
…PETITIONERS
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SHIVASHANKAR S/O IRAPPA AKKI,
AGED ABOUT 63 YEARS, OCC: AGRICULTURE,
R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
2. SMT. MAHADEVI W/O IRASANGAPPA HALAKUDE,
AGED ABOUT 58 YEARS, OCC: HOUSEHOLD,
Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA
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R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
3.
AIRAWATI W/O SURESH AKKI,
SINCE DECEASED BY HER LRS,
SRIDHAR S/O SURESH AKKI,
AGED ABOUT 22 YEARS, OCC: AGRICULTURE,
R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
4. SHILPA D/O SURESH AKKI,
AGED ABOUT 20 YEARS, OCC: HOUSEHOLD,
R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
5. SMT. SAVITRI W/O SUBHASH PATTANSHETTY,
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD,
R/O. JATH VILLAGE,
TQ. AND DIST. SANGLI,
MAHARASHTRA-416406.
6. PRAKASH S/O IRAPPA AKKI,
AGED ABOUT 44 YEARS,
OCC: AGRICULTURE,
R/O. BIJJARAGI VILLAGE,
TQ. TIKOTA, DIST. VIJAYAPURA-586101.
…RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR R1;
V/O DTD. 21.02.2025 NOTICE TO R2, R3, R5
DISPENSED WITH; R4 & R6 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 28.02.2023 IN OS NO.47/2021 AS
AT ANNEXURE- J PASSED BY THE COURT OF IV ADDL. SENIOR
CIVIL JUDGE AT VIJAYAPUR REJECTING I.A VI UNDER ORDER
VI RULE 17 OF CODE OF CIVIL PROCEDURE PREFERRED BY
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THE PETITIONERS AND CONSEQUENTIALLY TO ALLOW THE
APPLICATION AS PRAYED FOR.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
ORAL ORDER
1. The petitioners have filed this writ petition
challenging the order dated 28.02.2023, passed on
I.A.No.VI by the learned IV Additional Senior Civil
Judge, Vijayapura in O.S.No.47 of 2021.
2. The brief facts leading to filing of this writ petition
are as follows:
Respondent No.1 filed a suit in O.S.No.47 of
2021 for partition and separate possession in respect
of the suit schedule properties. The petitioners who
are defendant Nos.1, 3 and 4 and respondent No.3
have filed a detailed written statement denying the
averments of the plaint. Respondent Nos.2 and 5
filed a separate written statement along with a
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counterclaim. Respondent No.4 filed a memo
adopting the written statement filed by the
petitioners and respondent No.3. Respondent No.1
filed a rejoinder to the counterclaim filed by
respondent Nos.2 and 5 and denied the averments
made in the written statement. The trial Court
framed the issues, and thereafter, respondent No.1
led evidence and closed his side. Thereafter, the case
was posted for cross-examination of the defendants'
witnesses. At that stage, the petitioners filed an
application in I.A.No.VI under Order VI Rule 17 of
CPC seeking amendment to the written statement,
alleging that the petitioners could not bring to the
notice of the Court the fact that respondent No.1 and
the petitioner's family were the absolute owners of
the suit schedule properties and during the life time
of deceased Irappa i.e., the father of plaintiff and
defendant Nos.1, 3, 4, 9 and deceased Suresh, he
had effected a partition between his children. In the
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said partition, the petitioners had acquired the suit
properties. Hence, the petitioners sought to file an
additional written statement along with a
counterclaim. The said application was opposed by
Respondent No.1 by filing objections. It was
contended that the said application was filed after
the commencement of trial. He also submitted that
counterclaim cannot be made before the expiry of
time period of delivery of defendants’ defence. He
submitted that the application filed by the petitioners
was at a belated stage. The trial Court, after hearing
the learned counsel for the parties, rejected the
same by order dated 28.02.2023. Hence, this writ
petition.
3. Heard the learned counsel for the petitioners and the
learned counsel for the respondents.
4. Learned counsel for the petitioners submits that the
petitioners have filed an application seeking
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amendment to the written statement but the trial
Court committed an error in dismissing the
application. He submits that a counterclaim can be
made at any time. To buttress his arguments, he
places reliance on the decision of the Hon'ble Apex
Court in the case of Mahesh Govindji Trivedi v.
1
Bakul Maganlal Vyas and Others . Hence, on
these grounds, he prays to allow the writ petition.
5. Per contra , learned counsel for the respondents
submits that the petitioners filed an application for
amendment of the written statement and for seeking
a counterclaim. He submits that the said application
was filed when the case was posted for cross-
examination of the defendants' witnesses. He
submits that, as per the proviso to Order VI Rule 17
of the CPC, no application for amendment shall be
allowed after the trial has commenced, unless the
1
Civil Appeal No. 7203 of 2022, disposed of on 12.10.2022
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Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial. He submits that
no such pleading has been stated in the affidavit to
establish that, despite due diligence, the petitioners
could not raise the proposed amendment in the
original pleadings. To buttress his arguments,
learned counsel for respondents places reliance on
the judgment of the Hon'ble Apex Court in the case
2
of Mondira Ghosh v. Chaitali Ghosh . Hence, on
these grounds, he 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 respondent No.1 has
filed a suit for partition and separate possession in
O.S.No.47 of 2021. The petitioners filed written
statements. Respondent Nos. 2 and 5 have filed
2
2026 INSC 545
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written statements along with a counterclaim.
Respondent No.1 filed a rejoinder to the counterclaim
filed by Respondent Nos. 2 and 5 and denied the
averments made in the written statement. The trial
Court framed the issues, and thereafter recorded the
evidence of respondent No.1. When the case was
posted for further cross-examination of the
defendants' witnesses, at that stage, the petitioners
filed an application seeking amendment to the
written statement. By way of amendment, the
petitioners want to raise a counterclaim.
8. This Court had an occasion to consider a similar issue
in the case of Basavanneappa Malleshappa
Nandgad v. Sunanda Mahabaleshwar Nandgad
3
and Another .
“12. To consider the case on hand, it is
necessary to examine the provisions of Order
3
W.P.No.107506 of 2025, disposed of on 23.03.2026
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VIII Rule 6A of the Code of Civil Procedure,
which read as follows:
"16-A. Counter-claim by defendant.-
(1) A defendant in a suit may, in
addition to his right of pleading a set-
off under plaintiff, any right or claim in
respect of a cause of action Rule 6 set
up, by way of counter-claim against
the claim of the accruing to the
defendant against the plaintiff either
before delivered his defence or before
the time limited for delivering or after
the filing of the suit but before the
defendant has his defence has expired,
whether such counter-claim is in the
nature of a claim for damages or not:
Provided that such counter-claim
shall not exceed the pecuniary limits of
the jurisdiction of the Court.
(2) Such counter-claim shall
have the same effect as a cross-suit,
so as to enable the Court to pronounce
a final judgment in the same suit, both
on the original claim and on the
counter-claim.
(3) The plaintiff shall be at
liberty to file a written statement in
answer to the counter-claim of the
defendant within such period as may
be fixed by the Court."
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13. Upon perusal of Order VIII Rule 6A, it
is evident that a defendant in a suit may, in
addition to his right of pleading set-off under
Rule 6, set up a counterclaim against the claim
of the plaintiff. Such a counterclaim may be
made before the defendant has delivered his
defence or before the time limited for
delivering his defence has expired.
14. Admittedly, the said application was
filed when the case was posted for cross-
examination of PW1. The learned counsel for
the petitioner has placed reliance on the
judgment of the Hon'ble Apex Court in Ashok
Kumar Kalra (referred to supra), wherein the
Hon'ble Apex Court, in paragraph 23, has held
as follows:
"23. The above discussion lends
support to the conclusion that even
though Rule 6A permits the filing of a
counter Claim after the written
statement, the Court has the discretion
to refuse such filing if it is done at a
highly belated stage. However, in my
considered opinion, to ensure speedy
disposal of suits, propriety requires
that such discretion should only be
exercised till the framing of issues for
trial. Allowing counter claims beyond
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this stage would not only prolong the
trial, but also prejudice the rights that
may get vested with the plaintiff over
the course of time."
15. The Hon'ble Apex Court has held that
a defendant cannot be permitted to file a
counterclaim after the issues are framed and
the suit has substantially progressed, as it
would defeat the cause of justice and be
detrimental to the principles of speedy justice,
as envisaged in the object and reasons for the
relevant amendment to the Code of Civil
Procedure.
16. The Hon'ble Apex Court, in the case
of Rajul Manoj Shah Rajeshwari, Rasiklal Sheth
Vs. Kirabhai Shakrabhai Patel and Another
(arising out of SLP (C) No. 5635/2023), has
referred to its earlier judgment in Ashok Kumar
Kalra (supra) in paragraph 24 and has held
that a counterclaim can be made only before
the defendant has I delivered his defence.
17. Admittedly, in the present case, the
petitioner has already delivered his defence,
and the trial has commenced, as the Trial
Court has framed the issues and the matter is
posted for further cross-examination of PW1.”
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9. Admittedly, in the instant case, when the case was
posted for further cross-examination of the
defendants' witnesses, the petitioners filed an
application at a belated stage, i.e., after the
commencement of trial.
10. The proviso to Order VI Rule 17 of the CPC provides
that an application for amendment shall not be
allowed after the commencement of trial unless the
Court comes to the conclusion that, in spite of due
diligence, the party could not have raised the
proposed amendment in the pleadings before the
commencement of trial.
11. The Hon'ble Apex Court, in the case of Pandit
Malhari Mahale v. Monika Pandit Mahale and
4
Others , held that in the case of amendment of
pleadings, the Court must record a finding regarding
4
(2020) 2 SCC 549
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the due diligence of the party, as required under
Order VI Rule 17 of the CPC.
12. Admittedly, in the instant case, the application for
amendment filed by the petitioners does not disclose
that in spite of due diligence, the petitioners could
not have raised the proposed amendment in the
original pleadings. The trial Court was justified in
passing the impugned order. Hence, I do not find any
error in the impugned order.
13. Accordingly, I proceed to pass the following:
ORDER
i. The writ petition is dismissed .
Sd/-
(ASHOK S. KINAGI)
JUDGE
VNR
List No.: 1 Sl No.: 7
Ct:pk