SMT PUNNAAGA D/O VASUDEV SABAJI URF PUNNAAGA W/O SRIKANT VAIDYA vs SMT ANASUYA W/O LATE MUKUND SABAJI

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HC-KAR
NC: 2026:KHC-D:16837
WP No. 100623 of 2023


CNR: KAHC020017692023




IN THE HIGH COURT OF KARNATAKA AT DHARWAD

TH
DATED THIS THE 9 DAY OF OCTOBER 2026


BEFORE

THE HON'BLE MRS JUSTICE HEMA KULKARNI

WRIT PETITION NO.100623 OF 2023 (GM-CPC)

BETWEEN:




SMT. PUNNAAGA D/O. VASUDEV SABAJI
URF PUNNAAGA W/O. SRIKANT VAIDYA,
AGED ABOUT 69 YEARS, OCC: HOUSEHOLD,
RESIDING AT ROTSON ENCALVE,
DESHPANDE NAGAR HUBBALLI,
REPRESENTED BY ITS GPA HOLDER,
SHRIKANT S/O. NARAYANARAO VAIDYA,
AGED ABOUT 70 YEARS, OCC: SHARE BROKERAGE,
RESIDING AT RENUKA NAGAR HUBBALLI,
DHARWAD DISTRICT-580001.






…PETITIONER
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)

AND:

1. SMT. ANASUYA W/O. LATE MUKUND SABAJI
AGED ABOUT 70 YEARS, OCC: TEACHER,
RESIDING AT ROTSON ENCALVE,
DESHPANDE NAGAR, HUBBALLI,
DHARWAD DISTRICT-580001.




Digitally signed
by PRATIBHA M
PATIL
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH
Date:
2026.10.17
15:56:19 +0530

2. SMT. PUSHPA
S/O. BRATHARA VASUDEVACHARYA SABAJI,
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD,
RESIDING AT FLAT NO.5, ROTSON ENCALVE
DESHPANDE NAGAR, HUBBALLI-580008,
DIST: DHARWAD.

3. SHRI. MURALIDHAR
S/O. BRATHARA VASUDEVACHARYA SABAJI,
AGED ABOUT 49 YEARS, OCC: HOUSEHOLD,
RESIDING AT: FLAT NO.5, ROTSON ENCALVE,
DESHPANDE NAGAR, HUBBALLI-580008, DIST:
DHARWAD.

…RESPONDENTS
(NOTICE TO RESPONDENTS-SERVED)

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HC-KAR
NC: 2026:KHC-D:16837
WP No. 100623 of 2023


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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 20/10/2022
PASSED BY THE III ADDL. CIVIL JUDGE AND JMFC, HUBBALLI IN
O.S.NO.447/2012 IN I.A.NO.8 WHICH IS PRODUCED AT
ANNEXURE-J; AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MRS JUSTICE HEMA KULKARNI

ORAL ORDER



The present writ petition is filed challenging the order
dated 20.10.2022 passed on I.A.No.VIII in O.S.No.447/2012 by
1
the Court of the III Additional Civil Judge, Hubballi , whereby
the Trial Court rejected the said application filed under Order VI
Rule 17 read with Section 151 of the Code of Civil Procedure,
2
1908 .

2. For the sake of convenience and ease of reference,
the parties shall be referred to according to their respective
rankings before the Trial Court.

3. It is the case of the plaintiff that she instituted
O.S.No.447/2012 seeking the relief of mandatory injunction,
directing defendant No.1 to vacate and handover vacant and

1
H
ereinafter referred to as ‘ the Trial Court’
2
H
ereinafter referred to as ‘the CPC’

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actual possession of the suit schedule ‘B’ property to the
plaintiff. It is further contended that defendant No.1 is the
sister-in-law of the plaintiff. The suit schedule ‘A’ and ‘B’
properties originally belonged to Smt.Indrabai, wife of Bharath
Vasudevacharya Sabaji, who is the mother of the plaintiff and
mother-in-law of defendant No.1.

4. The family of Smt. Indrabai comprised three sons,
namely, Late Sri. Mukund, Late Sri. Mukesh and
Sri. Muralidhara, and two daughters, namely, Smt. Pushpa and
Smt. Punnaaga. Late Sri. Mukund died issueless in the year
2004, leaving behind his wife, defendant No.1. Another son,
Late Sri. Mukesh, had also predeceased her.

5. During the years 1995–1996, Smt. Indrabai entered
into an agreement with a builder, namely, Mr. Pradeep Raikar,
permitting him to construct a residential apartment building on
the property, subject to the condition that he would handover
two fully furnished properties with super built-up areas to her.
Upon completion of the construction, the builder handed over
possession of two properties to Smt. Indrabai along with
ownership rights therein.

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6. Smt. Indrabai resided in Property No.001 along with
her son, Late Sri. Mukund, until his death in 2004. Even after
his death, she continued to reside therein with her family.
Smt. Indrabai permitted defendant No.1, the wife of Late
Sri. Mukund, to occupy the suit schedule ‘B’ property as a
gratuitous licensee for a period of three years, commencing
from 15.11.2008 and ending on 14.11.2011, on the basis of an
oral arrangement.

7. It is further contended that Smt. Indrabai, being the
absolute owner and in possession of the suit schedule ‘B’
property, gifted the same to the plaintiff out of love and
affection by executing a registered Gift Deed dated 19.09.2008.
Thereafter, the plaintiff verbally terminated the licence granted
to defendant No.1. However, despite the expiry of the licence
period, defendant No.1 failed to vacate the suit schedule ‘B’
property and handover possession thereof to the plaintiff.
Consequently, the plaintiff instituted the aforesaid suit.

8. Upon service of summons, defendant No.1 entered
appearance through her counsel and filed a detailed written
statement along with a counterclaim, denying the plaint

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averments. Defendant No.2, namely, Smt. Indrabai, wife of
Sri. Bharath Vasudevacharya, also entered appearance through
her counsel and filed a written statement denying the
allegations made in the plaint. However, she subsequently died
during the pendency of the suit. The respondents Nos.2 and 3
herein were brought on record as her legal representatives and
filed a memo adopting the contents of the written statement
filed by the deceased defendant No.2.

9. Subsequently, owing to administrative developments,
O.S.No.447/2012 was transferred by the Court of the III
Additional Senior Civil Judge and JMFC, Hubballi, to the Court of
the IV Additional Civil Judge, Hubballi, on 19.06.2014. The
transferee Court issued notices to the parties, who appeared
through their respective counsel. Thereafter, the suit was
transferred to the Court of the III Additional Civil Judge,
Hubballi, on 02.05.2015.

10. The Trial Court proceeded with the matter and
decreed the suit in favour of the plaintiff by its judgment and
decree dated 31.07.2015. The said decree was put into
execution, and possession of the suit schedule ‘B’ property was

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taken pursuant thereto. Accordingly, E.P.No.157/2015 was
closed as fully satisfied on 10.03.2016.

11. Aggrieved by the judgment and decree dated
31.07.2015, defendant No.1 preferred R.A.No.67/2016 before
the Court of the III Additional Senior Civil Judge and JMFC,
3
Hubballi , challenging the correctness of the judgment and
decree passed by the Trial Court in O.S. No. 447/2012.

12. Upon hearing both parties, the Appellate Court
allowed the appeal, set aside the judgment and decree passed
by the Trial Court, and remanded the matter to the Trial Court
with a direction to afford both parties an opportunity to adduce
evidence and to dispose of the suit as expeditiously as possible.
The Appellate Court further directed the parties to appear
before the Trial Court on 10.11.2021, without awaiting further
notice.

13. Pursuant to the order of remand, the plaintiff
appeared before the Trial Court and filed I.A.No.VIII seeking
amendment of the plaint. Defendant No.1 filed objections to the

3
H
ereinafter referred to as ‘the Appellate Court’

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said application, contending that the application was not
maintainable and was liable to be dismissed.

14. Upon considering the material available on record and
hearing the submissions of both parties, the Trial Court
rejected I.A.No.VIII by its order dated 20.10.2022.

15. Aggrieved by the said order, the plaintiff/petitioner
has preferred the present writ petition.

16. Learned counsel for the petitioner contends that the
suit was initially instituted by the plaintiff seeking the relief of
mandatory injunction against defendant No.1, who was merely
a licensee in respect of the suit schedule ‘B’ property. The suit
was contested by the defendants and, in the meanwhile, came
to be decreed in favour of the plaintiff in terms of the relief
sought. Pursuant to the said decree, the plaintiff obtained
possession of the suit schedule ‘B’ property through execution
proceedings. However, in view of the subsequent developments
and the change in circumstances, it became necessary for the
plaintiff to seek amendment of the plaint to suitably mould the
relief. It is further contended that, since the original suit was
instituted only for the relief of mandatory injunction and

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possession of the suit schedule ‘B’ property had subsequently
been delivered to the plaintiff pursuant to the order passed in
E.P.No.157/2015, the petitioner sought amendment of the
plaint to appropriately mould the relief in the light of the
subsequent events.

17. Learned counsel submits that the proposed
amendment is necessary to avoid technical objections and to
ensure complete and effective adjudication of the dispute
between the parties. Hence, prays to allow the petition by
setting aside the order passed by the Trial Court.

16. Though notice has been served upon the respondents,
they have remained absent and unrepresented.

17. I have given my anxious consideration to the
submissions made by the learned counsel for the petitioner and
perused the materials available on record.

18. The Trial Court has further observed that the plaintiff
had instituted the suit seeking recovery of possession of the
suit schedule ‘B’ property and that possession had been
recovered pursuant to the execution proceedings in

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E.P.No.157/2015. On this basis, the Trial Court observed that
the relief of mandatory injunction sought in the original suit had
been worked out. However, the plaintiff sought to amend the
plaint by substituting the relief of mandatory injunction with
that of permanent injunction to restrain interference with the
suit schedule ‘B’ property.

19. The Trial Court held that the cause of action for the
original relief of mandatory injunction was distinct from that for
the proposed relief of permanent injunction and that the
proposed amendment would change the nature of the suit. It
further observed that the plaintiff had not offered any
satisfactory explanation for not seeking the proposed
amendment at an earlier stage.

20. The Trial Court placed reliance on the decision of the
Hon’ble Supreme Court in Asian Hotels (North) Ltd. v. Alok
Kumar Lodha and Others , reported in (2022) 8 SCC 145 ,
wherein the Hon’ble Supreme Court held that the proposed
amendment was not permissible as it would change the nature
of the suit. Upon perusal of the impugned order and the
materials placed on record, it is evident that the Trial Court has

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considered the grounds urged by the parties while deciding the
application.

21. It is not in dispute that the original suit was instituted
seeking mandatory injunction for recovery of possession of the
suit schedule ‘B’ property from defendant No.1 and that
possession was obtained by the plaintiff in E.P.No.157/2015.
However, the judgment and decree passed by the Trial Court
were subsequently set aside by the Appellate Court, and the
matter was remanded for fresh consideration. Therefore, the
fact that possession was obtained in the earlier execution
proceedings cannot, by itself, be a conclusive ground to hold
that nothing survives for consideration in the suit.

22. The plaintiff now seeks to amend the plaint by
introducing the relief of permanent injunction, which is founded
on an alleged cause of action different from that underlying the
present suit. The proposed amendment would, therefore,
requires consideration of the circumstances giving rise to the
alleged interference and deciding if the plaintiff is entitled to
the proposed relief.

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23. Having regard to the nature of the original relief, the
nature of the proposed amendment and the reasons assigned
by the Trial Court, I find no sufficient ground to interfere with
the impugned order dated 20.10.2022 passed on I.A.No.VIII
under Order VI Rule 17 read with Section 151 of the Code of
Civil Procedure, 1908.

24. Hence the following:
ORDER

a) The writ petition is dismissed .

b) The order dated 20.10.2022 passed on
I.A.No.VIII filed under Order VI Rule 17 read
with Section 151 of the CPC in O.S.No.447/2012
by the Court of the III Additional Civil Judge,
Hubballi, is confirmed.

c) No order as to cost.

Sd/-
(HEMA KULKARNI)
JUDGE

PMP
CT:VH
List No.: 1 Sl No.: 13