SRI D B HANUMANTHAIAH vs SMT MANGALAMMA ALIAS MANGALA
- Court
- Karnataka High Court
®
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 3 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 22794 OF 2025 (GM-CPC)
BETWEEN:
1. SRI D.B.HANUMANTHAIAH
SON OF LATE BOMMEGOWDA,
AGED ABOUT 65 YEARS
2. SRI.D.B.RAMESH
SON OF LATE BOMMEGOWDA,
AGED ABOUT 55 YEARS
3. SRI.D.B.RAMACHANDRA
SON OF LATE BOMMEGOWDA,
AGED ABOUT 50 YEARS
4. SRI.D.B.NINGEGOWDA,
SON OF LATE BOMMEGOWDA,
AGED ABOUT 48 YEARS
ALL ARE RESIDING AT
DODDA ARASINAKERE VILLAGE,
C.A.KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT -571 422
Digitally
signed by
SUVARNA T
Location:
HIGH
COURT OF
KARNATAKA
…PETITIONERS
(BY SMT.GEETHA DEVI M.P., ADVOCATE)
AND:
SMT.MANGALAMMA @ MANGALA
WIFE OF SHIVALINGA,
MAJOR,
ND
RESIDING AT 2 CROSS,
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WATER TANK ROAD, N.E.S. EXTENSION,
MALAVALLI TOWN,
MALAVALLI -571 430
…RESPONDENT
(BY SRI. K.S.PONNAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE RECORDS IN RA NO. 32 OF 2018 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMF AT MADDUR.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 31.08.2026, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
Aggrieved by the order dated 19.02.2024, passed in
I.A.No.IX in RA.No.32/2018 by the Additional Senior Civil Judge
and JMFC, Maddur, whereby the Appellate Court dismissed
I.A.No.IV, filed under Order VI Rule 17 of the CPC, seeking an
amendment to the written statement, the
petitioners/defendants are before this Court.
2. The respondent herein, who is the plaintiff, filed O.S.
No.476/2013 seeking specific performance, which was decreed
by Judgment and Decree dated 21.07.2018. Aggrieved by the
same, the defendants filed an appeal in R.A.No.32/2018. In the
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appeal, the defendants filed I.A.No.IX under Order VI Rule 17
read with Section 151 of CPC, seeking to amend the written
statement by adding Paragraph Nos. 2(A) to (D) and 3(A) to
(E). The defendants also filed I.A.Nos.IV and V under Order XLI
Rule 27 of the CPC. It is the case of the defendants that they
could not raise the legally and factually available defences in
the earlier written statement. Their earlier advocate was not in
good health during the trial before the Trial Court. He had
suffered a stroke and, during that period, had to visit Bengaluru
frequently. Defendant No.1 was also involved in facilitating his
daughter's studies abroad. Therefore, he could not collect the
facts and documents. Some of the proposed amendments are
new, while others are additional pleadings. They are required
for the just and proper decision of the appeal. The suit/appeal
involves the valuable rights of the defendants in respect of the
immovable property. Therefore, if the application is not
allowed, the defendants will be put to greater hardship, injury
and inconvenience. The Appellate Court, by the order
impugned, rejected I.A.No. IX.
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3. While rejecting I.A.No.IX, the Appellate Court observed
that the first reason assigned by the defendants for the delay
was that their earlier advocate was unwell and had suffered a
stroke. The Appellate Court further observed that the
application sought an amendment to the written statement, not
permission to file it. However, the written statement had
already been filed. In that case, this defence was not available.
Another contention was that Defendant No.1 was facilitating his
daughter's studies abroad and, hence, could not collect the
requisite facts and documents. The Appellate Court observed
that it was not the defendants' case that Defendant No.1 was
involved in facilitating his daughter's studies abroad for the
entire 5 years. It was not his case that he could not contact his
advocate for 5 years due to preparations for his daughter's
studies abroad. He had not stated in which year or on what
dates he had to be involved in facilitating his daughter's studies
abroad. Having failed to raise the contentions sought to be
introduced by the proposed amendment for a long time during
the trial and before the Appellate Court, the present
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amendment application could not be considered after a lapse of
8 years.
4. The Appellate Court further observed that, even with
respect to the nature of the amendment, according to the
defendants' own version pleaded in the affidavit, some of the
grounds raised in the amendment were new and some were
additional. However, the affidavit also specified which grounds
were new, which were additional, and the necessity and
relevance of each. According to the defendants' defence, the
transaction between them and the plaintiff was a money
transaction. According to them, Defendant No.1 was in dire
need of money and signed the document on the plaintiff's
assurance. However, the plaintiff created the document. The
Appellate Court observed that, in the proposed amendment,
the defendants stated that O.S.No.158/2013 was pending.
However, in the written statement, the defendants had already
pleaded the pendency of the case. Therefore, the question of
stating it again did not arise. Even with regard to the alleged
contention that the suit property was worth more than Rs.20
lakhs, there was already a pleading in the plaint. No new
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grounds were raised in the application. The only new ground
sought to be added by way of amendment to the defence was
the non-service of notice alleged to have been issued by the
plaintiff. However, as mentioned above, there was no
explanation as to why this contention was not raised in the
earlier written statement. It was not the contention of the
defendants that they were unaware of the non-service of notice
and, hence, there was no delay in stating the said facts in the
written statement. Such being the case, in the absence of
cogent and convincing reasons for not stating it in the earlier
written statement and for the delay in seeking the proposed
amendment, the Court could not permit the defendants to carry
out the amendments contrary to the settled principles
governing amendments and the proviso to Order VI Rule 17 of
the CPC. Hence, the Court took the view that the amendment
could not be permitted.
5. The Appellate Court further observed that Defendant
No.1 had stated that the proposed amendment did not raise
any legally or factually available defences. However, as
mentioned above, no defence was factually raised at all. Most
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of the proposed amendments were in the nature of evidence.
As mentioned above, the only defence found to have been
factually raised concerned the non-service of notice. However,
no acceptable, cogent or convincing reasons were forthcoming
from the defendants to overcome the barrier provided under
the proviso to Order VI Rule 17 of the CPC. Accordingly, the
Appellate Court rejected the application.
6. When it came to the applications filed under Order XLI
Rule 27 of the CPC, the Appellate Court observed that
Defendant No.1 had filed affidavits sworn by him. In the said
affidavits, it was stated that, before the Trial Court, his
advocate was not in good health and had suffered a stroke. He
had to visit Bengaluru frequently. The defendant's daughter
was pursuing her studies in Russia, and he had to perform his
daughter's marriage. Therefore, he could not collect and
produce certain documents. On the other hand, the plaintiff had
filed detailed objections. At the outset, it is pertinent to note
that the defendants had not led any evidence before the Trial
Court. Though the defendants had filed applications to lead
defence evidence, the said applications were rejected by the
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Trial Court. Therefore, neither oral nor documentary evidence
on behalf of the defendants was on record. It is pertinent to
note that, as rightly contended by the defendants, the appeal
involved valuable rights of the defendants in respect of
immovable property. In the written statement, the defendants
had raised a specific defense that the transaction between the
defendants and the plaintiff was not a sale transaction but a
loan transaction. In order to substantiate the said defence, the
proposed documents were highly relevant. Though the plaintiff
objected to the application, she had not stated how she would
be put to hardship if the application was allowed. Accordingly,
the Appellate Court allowed the applications filed by the
defendants under Order XLI Rule 27 of the CPC, subject to
payment of costs of Rs.1,000/- each. Therefore, the
pronouncement of the judgment was deferred.
7. Learned counsel for the petitioners/defendants submits
that the finding of the Appellate Court that the amendment is
an afterthought is not sustainable, as the Appellate Court failed
to consider the petitioners' contention that they had already
pleaded that the alleged sale agreement was false, that the
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transaction was actually a loan transaction, and that the
petitioners sought to elaborate on this aspect of the loan
transaction by adding additional facts. In addition, the
petitioners contended that the value of the property was more
than Rs.20 lakhs and that it could not have been sold for a
small amount. In support of these additional facts, documents
were produced, which would not prejudice the plaintiff. It is
submitted that the finding of the Appellate Court that there was
a delay in filing the application for amendment is also not
sustainable, as the Apex Court, in a catena of judgments, has
held that amendments should generally be allowed to avoid
multiplicity of litigation. It is submitted that the Appellate Court
failed to follow the guidelines pertaining to the amendment of
pleadings laid down by the Apex Court in the case of LIC Vs.
1
Sanjeev Builders and also the judgment of the Apex Court in
the case of Jai Jai Ram Manohar Lal Vs. National Building
2
Material Supply , wherein the Hon'ble Apex Court held that
the power to amend pleadings is intended to serve the ends of
justice and is not governed by any narrow or technical
1
(2022) 16 SCC 1
2
AIR 1969 SC 1267
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limitation or delay. The Appellate Court erred in relying upon
the judgments in Jambulingaiah Hiremath Vs. Akkama
3
Devi and Others and Gayatri Women's Welfare
4
Association Vs. Gowramma and Another , which are not
applicable to the facts and circumstances of the case. It is
submitted that there was a delay in questioning the impugned
order because the petitioners were entirely unaware of the
legal proceedings and acted on the advice and belief that they
could raise the plea in their evidence. However, when they
consulted the present advocate in Bengaluru, they were
informed that, without pleadings, evidence alone would be of
no avail. Hence, the petitioners have filed this petition. Learned
counsel submits that the impugned order needs to be set aside
and that the application may be allowed, permitting the
petitioners to amend the written statement.
8. Learned counsel for the respondent/plaintiff submits
that the defendants filed the written statement on 07.04.2016,
and the judgment was passed on 21.07.2018. On 02.11.2018,
the defendants filed the appeal. The amendment application
3
ILR 2020 KAR 2045
4
(2011) 2 SCC 330
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was filed on 06.09.2021, almost 3 years after the filing of
R.A.No.32/2018. The Appellate Court rejected the application
on 19.02.2024, and, aggrieved thereby, the petitioners filed
this petition on 24.07.2025. It is submitted that the application
is hit by the proviso to Order VI Rule 17 of the CPC and was
filed after an unexplained delay of nearly 8 years from the
institution of the suit, indicating that the proposed amendment
is an afterthought. It is submitted that there was no due
diligence. The contention that the counsel was unwell and
frequently travelled to Bengaluru may, at best, explain the
delay in filing the written statement; it does not explain the
failure to raise the proposed contentions at the stage of filing
the written statement. It is submitted that the plea regarding
the illness of the counsel is contrary to the stand taken before
the Trial Court, where the affidavits filed in I.A.Nos.IV and V,
seeking permission to lead defence evidence, assign reasons
stating that Defendant No.1 was ill and not the advocate. No
supporting medical or other documents were produced in
respect of either version. It is submitted that the Appellate
Court rightly considered all these aspects and rejected the
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application, and there are no grounds to interfere. He relied on
the judgment of the Apex Court in the case of
Ajendraprasadji N. Pandey and Another Vs. Swami
5
Keshavprakeshdasji N. and Others. He relied on Paragraph
Nos. 34 to 36, 61 and 62, which read thus:
“34. It is seen that before the amendment of Order
6 Rule 17 by the Act 46 of 1999, the Court has
taken a very wide view of the power to amend the
pleadings including even the plaint as could be
seen from H.J. Leach vs. Jardine Skinner, 1957
SCR 438 at 450 and Gurdial Singh vs. Raj Kumar
Aneja, AIR 2002 SC 1003.
35. By Act 46 of 1999, there was a sweeping
amendment by which Rules 17 and 18 were wholly
omitted so that an amendment itself was not
permissible, although sometimes effort was made
to rely on Section 148 for extension of time for any
purpose.
36. Utlimately to strike a balance the Legislature
applied its mind and re-introduced Rule 17 by Act
22 of 2002 w.e.f. 1.7.2002. It had a provision
permitting amendment in the first part which said
that the Court may at any stage permit
amendment as described therein. But it also had a
total bar introduced by a proviso which prevented
any application for amendment to be allowed after
the trial had commenced unless the Court came to
the conclusion that in spite of due diligence the
party could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration.
61. We can also usefully refer to the judgment of
this Court in Baldev Singh and Others vs. Manohar
Singh and Another, (2006) 9 SCC page 498 for the
same proposition. A perusal of the proposed
amendment would show that it contains numerous
5
(2006) 12 SCC 1
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averments. So far as the averments in the
proposed amendments are concerned, at page 12
of the order in para 22, the appellants admit that
all the issues raised by way of proposed
amendment in the written statement were taken
before this Court in the appeal from order filed by
the present defendants in the civil appeal filed
before this Court and again in the special leave
petition filed subsequent. As rightly pointed out by
learned senior counsel in any section should not be
so interpreted that part of it becomes otiose and
meaningless and very often a proviso itself is read
as a substantive provision it has to be given full
effect.
62. It is sad and unfortunate that the
Swamijis/Sanyasis/ members of the Sangh seem
to have paid their attention more to litigation than
to the propagation of the teachings of Swami
Narayan. This situation should change. If the time,
energy and money spent on litigations and feuding
had been spent for carrying on the wishes of the
founder of the institution, things would have
reached very great and amazing heights. We have,
therefore, to voice our anxiety in this matter and
request that the system and administration should
be fairly and properly bridled, to prevent
recurrence or repetition of feuds, which have
already to some extent shattered the reputation of
this great majestic institution, which has very vast
resources and assets. Therefore, it is high time
that proper remedial measures are taken by all
concerned.”
9. He relied on another judgment of the Apex Court in
6
Shivshankara and Another Vs. H.P. Vedavyasa Char , and
paragraph Nos.24 and 28 which read as follows:
“24. We are not oblivious of the settled position
that in dealing with prayers for amendment of the
6
(2023) 13 SCC 1
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pleadings the Courts should avoid hyper technical
approach. But at the same time, we should keep
reminded of the position that the same cannot be
granted on the mere request through an
application for amendment of the written
statement, especially at the appellate stage,
where, what is called in question is the judgment
and decree passed by the trial Court and, in other
words, after the adverse decree and without a
genuine, sustainable reason. In short, the
circumstances attending to the particular case are
to be taken into account to consider whether such
a prayer is allowable or not and no doubt, it is
allowable only in rarest of rare circumstances.
28. The fact that the defendants were given
opportunities to file additional written statements
for not less than eight times after the amendment
of the plaint, in between the period 07.03.1996 till
the framing of the issues viz. 15.04.1997, that in
the interlocutory application filed in RFA No.1966
of 2007 based on which the trial Court was
directed to afford opportunity to the defendants to
adduce evidence as per judgment and decree
passed on 29.10.2007 they sought permission only
to adduce evidence, contending that they were
deprived of opportunity to adduce evidence and
even at that point of time no permission was
sought for amending the written statement, were
taken into consideration by the High Court.
Evidently, the High Court also observed that if the
amendment of written statement was allowed at
that stage, it would have necessitated framing of
fresh issues and parties were to agitate their
rights as if in a de novo trial.”
10. Relying on the above judgments, it is submitted that
the writ petition is liable to be dismissed.
11. Having heard the learned counsel on either side,
perused the material on record. The question that arises for
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consideration is whether the Appellate Court was justified in
refusing to amend the written statement while permitting
additional evidence on the same facts, without examining
whether the evidence sought to be introduced could be
considered on the basis of the existing pleadings. The purpose
of pleadings is to identify the facts upon which the parties seek
adjudication of their rights. Evidence is intended to establish
those facts. A party cannot introduce an entirely new factual
case through evidence without affording the opposite party an
opportunity to meet the case in the pleadings. In Bachhaj
7
Nahar Vs. Neelima Mandal , the Hon'ble Supreme Court
emphasised that a Court cannot decide a dispute on a factual
foundation that was never pleaded merely because some
evidence relating to it has been brought on record. This
principle assumes particular importance in the present case.
The Appellate Court has permitted additional evidence but has
not examined whether the documents sought to be produced
relate to the defence already pleaded or whether they are
intended to establish facts that find no place in the written
statement. The distinction is material. If the documents merely
7
(2008) 17 SCC 491
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support or explain an existing defence, no amendment may be
necessary. If they are intended to establish an independent
factual defence, the absence of a corresponding pleading
cannot be overlooked. The Hon'ble Supreme Court in the case
8
of Iqbal Ahmed (Dead) by LRs Vs. Abdul Shukkur
considered this very question in an appeal arising from a
decree of specific performance. The Appellate Court permitted
the defendants to produce additional evidence and relied on
that evidence while reversing the decree. The Hon'ble Supreme
Court held that, before permitting additional evidence under
Order XLI Rule 27 of the CPC, the Court must examine whether
the case sought to be established is supported by the
pleadings. In the absence of the necessary factual foundation,
such evidence may be incapable of being considered. The
matter was consequently remitted for fresh consideration.
12. The difficulty with the impugned order becomes
apparent when both applications are considered together. On
the one hand, the Appellate Court considered it appropriate to
permit the defendants to adduce additional evidence. On the
other hand, it declined to examine whether any of the proposed
8
2025 INSC 1027
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amendments were necessary to consider that evidence. The
Court was required to consider the relationship between the
existing pleadings, the proposed amendments and the
documents sought to be introduced. Without undertaking that
exercise, the refusal to allow the amendments remains
incomplete. This does not mean that permission to adduce
additional evidence automatically entitles the defendants to
amend the written statement. The requirements of Order VI
Rule 17 and Order XLI Rule 27 of the CPC are distinct. The
Appellate Court was justified in observing that evidence and
propositions of law need not ordinarily be incorporated in
pleadings. However, the application also referred to additional
material facts and subsequent events. Those averments require
separate consideration. The Appellate Court ought to have
examined whether they were necessary for the adjudication of
the appeal rather than treating all the proposed amendments
alike.
13. There is another issue with regard to the delay. The
suit has already been decreed, and the application for
amendment was made at the appellate stage. Order VI Rule 17
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of the CPC requires the defendants to show that, despite due
diligence, the matter could not have been raised before the
commencement of the trial. The explanation that the advocate
was unwell cannot, by itself, satisfy this requirement. The
defendants must explain which material facts were omitted,
when they came to know of them, and why they could not have
been pleaded earlier. The Hon'ble Supreme Court in Vidyabai
9
Vs. Padmalatha has held that the requirement of due
diligence is mandatory once the trial has commenced. The
position may, however, be different with respect to subsequent
events. Facts that arose after the written statement was filed
could not have been incorporated at that time. If such events
have a material bearing on the controversy, the Court may
consider permitting their introduction, subject to their
relevance, the stage at which they occurred and the
explanation for the delay in bringing them to the notice of the
Court. An amendment that elaborates an existing defence also
stands on a different footing from one that introduces a new
and inconsistent case. These distinctions are particularly
important when the plaintiff already holds a decree for specific
9
(2009) 2 SCC 49
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performance and should not be subjected to an entirely
different defence without sufficient justification.
14. The order permitting additional evidence is not
challenged in the present proceedings. This Court is, therefore,
not concerned with its correctness. In the light of the above
facts and circumstances, the Appellate Court ought to have
examined the proposed amendments individually to determine
whether they contain material facts necessary for considering
the additional evidence already permitted and whether they
merely elaborate the existing defence or introduce an
altogether new case. The impugned order does not reflect such
an examination. The rejection of the application on the ground
of delay and the observation that the proposed amendments
relate to evidence and law, without addressing these
distinctions, cannot be sustained. This Court is not inclined to
permit the amendments in their entirety merely because
additional evidence has been allowed. Such a course would
dispense with the scrutiny required under Order VI Rule 17 of
the CPC and prejudice the plaintiff, who has been holding a
decree since 21.07.2018. The appropriate course is to remit the
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application for consideration, leaving it to the Appellate Court to
determine which, if any, of the proposed amendments are
permissible in law. In that view of the matter, this Court passes
the following order:
ORDER
i. The order dated 19.02.2024, passed in I.A.No.IX in
RA.No.32/2018 by the Additional Senior Civil Judge
and JMFC, Maddur, is set aside, and the matter is
remanded back to the First Appellate Court for
fresh consideration in light of the existing pleadings,
the nature of the proposed amendments, and the
additional evidence already permitted.
ii. The First Appellate Court shall also examine whether
the defendant satisfied the requirement of due
diligence under the proviso to Order VI Rule 17 CPC
and whether permitting any of the amendments
would prejudice the plaintiff.
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iii. The First Appellate Court shall dispose of the
application expeditiously and hear the appeal without
unnecessary delay.
iv. Accordingly, the writ petition is allowed .
v. All I.As. in this petition shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
MEG
List No.: 1 Sl No.: 7
*AK