M/S DPK ENGINEERS PVT. LTD., vs M/S GUHRING INDIA PVT LTD.,
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 8 DAY OF OCTOBER, 2026
BEFORE
HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO.9988 OF 2024 (GM-CPC)
BETWEEN:
M/S DPK ENGINEERS PVT. LTD.,
REGISTERED OFFICE AT NO.109
J C ROAD, BANGALORE – 560 002
AND FACTORY AT:
UNIT NO.2, SURVEY NO.128/2,
TH
4 PHASE, BOMMASANDRA
INDUSTRIAL AREA,
BOMMASANDRA-JIGANI LINK ROAD,
OFF HOSUR ROAD,
BANGALORE – 560 099,
REPT. BY ITS DIRECTOR
MR. MADAN SAMPATHRAMAN
S/O SRI. SAMPATH RAMAN,
AGED ABOUT 44 YEARS,
DIRECTOR,
M/S DPK ENGINEERS PVT. LTD.,
…PETITIONER
(BY SRI. M.S.SHYAMSUNDAR, SENIOR COUNSEL FOR
SRI. SUBRAMANYA M, ADVOCATE)
AND:
M/S GUHRING INDIA PVT. LTD.,
HAVING ITS FACTORY AT PLOT NO.129,
BOMMASANDRA,
JIGANI LINK ROAD,
OFF HOSUR ROAD,
Digitally signed by
JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
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BANGALORE – 560 099
REPT. BY IT’S AUTHORIZED SIGNATORY
…RESPONDENT
(BY SMT. SUNITA SRINIVAS, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING THE IMPUGNED ORDER DATED
27.03.2024 IN MIS. PETITION PENDING ON THE FILE OF THE II
ADDL. SENIOR CIVIL JUDGE AND JMFC AT ANEKAL AT
ANNEXURE-A, AND ALLOW THIS WP WITH COSTS AND GRANT
SUCH OTHER RELIEFS AS THIS HON’BLE COURT MAY DEEM FIT
TO GRANT IN THE CIRCUMSTANCES OF THIS CASE.
THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
1. The present petition seeks to challenge an order dated
27.03.2024, passed in Miscellaneous Petition No.89/2019
pending on the file of the II Addl. Senior Civil Judge and
JMFC at Anekal [hereinafter referred to as the ‘Impugned
Order’]. By the Impugned Order, an amendment application
being I.A.No.5 which was filed under Order 6, Rule 17 of the
Code of Civil Procedure, 1908 [hereinafter referred to as
‘the CPC’] has been rejected. The said Miscellaneous
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Petition was filed under Order 9, Rule 13 of the CPC by the
petitioner/defendant.
2. Learned Senior Counsel appearing for the
petitioner/defendant has contended that a suit being
O.S.No.358/2014 filed by the plaintiff/respondent herein,
was decreed on 01.09.2017 against the
petitioner/defendant. It is his contention that the decree
was passed without any contest before the learned Trial
Court. It is stated that on receipt of summons, though the
petitioner/defendant appeared through counsel, they did
not file any written statement or lead any evidence. He
further submits that in view thereof, the
petitioner/defendant filed Miscellaneous Petition
No.89/2019 under Order 9, Rule 13 of the CPC seeking to
permit the petitioner/defendant to lead its evidence.
3. It is further contended that the petitioner/defendant
had also filed an application being I.A.No.5 under Order 6
Rule 17 of the CPC seeking amendment of the petition to
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include the name of the Director and also to add additional
paragraphs 2(a) and 5(a), on 13.03.2024. During the
course of cross-examination of PW1, certain additional
averments regarding the ill-health of one of the Directors
were sought to be brought on record and thus the said
application was filed. However, the Trial Court by its order
dated 27.03.2024, had rejected the application stating that
the proposed amendment is not necessary for the effective
adjudication of the dispute between the parties.
4. Learned Senior Counsel on instructions also submits
that all that is being sought for by the petitioner/defendant
is an opportunity to place its entire defence before the Trial
Court and he also submits that the appellant/defendant is
willing to deposit some additional amounts, to show his
bona fides, if permitted by this Court.
5. Learned counsel for the respondent/plaintiff, on the
other hand submits relying on the decree that was passed,
that the petitioner/defendant was represented all
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throughout the proceedings. She further submits that the
decree was not passed exparte and although the
petitioner/defendant were present, they did not lead any
evidence.
6. On merits of the case, the learned Counsel also refers
to other decisions passed by the Coordinate Benches of this
Court in appeals and challenges to submit that the
petitioner/defendant is merely delaying the matter. Learned
Counsel also submits that the petitioner/defendant must at
least deposit 25% more before the learned Trial Court, as
a pre-condition to allow this petition.
7. This Court has examined the record. Undisputedly, a
decree was passed by the learned Trial Court on
01.09.2017. Although the petitioner/defendant was
represented by counsel, the matter was not contested by
the petitioner/defendant. No evidence was led by the
petitioner/defendant and neither were any documents filed
by the petitioner/defendant in support of its claim.
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7.1 The Miscellaneous Petition was filed seeking to set
aside a decree passed by the Learned Trial Court on
01.09.2017 in O.S.No.358/2014 by which directions were
passed decreeing the suit of the respondent/plaintiff and
directing the petitioner/defendant to pay Rs.90,85,000/-
together with court costs and future interest at 8% per
annum from the date of the suit till its realization.
[hereinafter referred to as the ‘Decree’].
7.2 The Miscellaneous Petition filed seeking to set aside
the Decree is pending since September - 2019 and is still
pending till today, despite the lapse of 7 years.
8. An examination of the Impugned Order sets out that
the learned Trial Court has held that this application has
been filed to fill up the lacuna in the evidence of PW1 after
PW1 was fully cross-examined. The learned Trial Court has
accepted the objections filed by the respondent/plaintiff and
held that no sufficient reasons have been shown, as to why
this amendment was not put forward earlier. It further
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states that the amendment will cause prejudice to defence
taken by the respondent/plaintiff. Thus, it has dismissed the
application.
9. The proviso to Order VI Rule 17 of the CPC sets out that
amendment should not be allowed once the trial in the
matter has begun and reads as under:
"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]
10. It is no longer res integra that Courts should normally
be liberal while adjudicating amendments. However where
such amendment has been sought for after the trial has
commenced, the proviso to Order 6 Rule 17 of the CPC
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requires the applicant to show due diligence in asking for
the amendment.
11. The Supreme Court in Haramani Sahoo v. Lalita
1
Nayak , while considering the scope of amendment of
pleadings under Order VI Rule 17 of the CPC at the post-
trial stage has, held that an amendment sought after
commencement of trial may be permitted where the
applicant furnishes a sufficient explanation demonstrating
that, despite due diligence, the matter could not have been
raised earlier. In addition it has been held that if the
proposed amendment is necessary for effective adjudication
of the real controversy without fundamentally altering the
nature and character of the suit, the amendment ought to
be allowed. The Supreme Court further held that where the
proposed amendment bears a direct nexus with the existing
controversy and the prejudice occasioned to the opposite
party can be addressed by permitting additional pleadings
1
2026 SCC OnLine SC 2123
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and, where appropriate, imposing costs, the amendment
may be allowed, subject to satisfaction of the statutory
requirement of due diligence. The relevant extract is set out
below:
“10. A plain reading of the aforesaid provision makes
it clear that Order VI Rule 17 of the CPC confers a
discretionary power upon the Court to permit
amendments which are necessary for determining
the real questions in controversy between the
parties. However, once the trial has commenced, the
exercise of such power is subject to the additional
requirement that the Court must be satisfied that
despite due diligence, the party could not have
raised the matter before the commencement of trial.
The object of the provision is to enable the Court to
effectively and completely adjudicate upon the
dispute between the parties, while at the same time,
ensuring that a party does not introduce at a belated
stage, matters which could, with due diligence, have
been raised earlier.
xxx xxx xxx
12. In the present case, there is no dispute that the
application for amendment was filed after
commencement of the trial and therefore, the
proviso to Order VI Rule 17 of the CPC is attracted.
The fact that the amendment was sought at a
belated stage is, by itself, not determinative. The
principal question is whether, the appellants have
shown that despite due diligence, the matters now
sought to be introduced could not have been raised
before the commencement of the trial. The further
question is whether the proposed amendment
would fundamentally alter the nature and character
of the suit.
13. As regards the requirement of due diligence, the
original suit concerns the right, title and interest in and
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possession of the very property which forms the subject
matter of the proposed amendment. The proposed
pleading relating to the compromise decree passed in T.S.
No. 105 of 1998 arises from the allegation that the said
decree affects a portion of the very suit property, namely,
Ac. 0.02 decimals comprised in Hal Plot No. 3371/4050.
The case of the original plaintiff is that he was not a party
to the said suit and was unaware of the compromise
decree. It is stated that only upon obtaining certified
copies of the plaint and final decree on 22.06.2020, did he
come to know of the compromise in respect of suit plot
No. 3371/4050 measuring Ac. 0.04 decimals along with
other properties between Defendant No. 8 and others. It
is further stated that the written statement filed by
Defendant Nos. 9 and 10 did not disclose the source of
title of their vendors.
13.1. The significance of these circumstances
cannot be overlooked. The proposed amendment is
not founded upon a transaction or an event wholly
unconnected with the subject matter of the suit, but
upon a subsequent discovery of a decree which,
according to the original plaintiff, has a bearing
upon the title to a portion of the very property in
dispute . The record indicating that certified copies of the
plaint and final decree were obtained on 22.06.2020 is a
relevant circumstance in assessing the plea of due
diligence. At this stage, it is not necessary for the
Court to finally determine whether the plaintiff's
assertion regarding the date of knowledge is
ultimately correct. What is required is to examine
whether sufficient explanation has been furnished
for not raising the matter before commencement of
the trial.
13.2. Having regard to the aforesaid circumstances, we
are of the view that the explanation furnished by the
appellants cannot, at this stage, be characterised as a
mere omission, inadvertence or negligence. The
subsequent discovery of the compromise proceedings,
coupled with the assertion that the original plaintiff was
not a party to those proceedings and that the source of
title of the vendors was not disclosed in the written
statement, provides a sufficient basis for accepting
the plea of due diligence for the purposes of the
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proviso to Order VI Rule 17 of the CPC. The statutory
requirement is therefore satisfied.
xxx xxx xxx
14.1. The real inquiry is whether the amendment
introduces a distinct and independent controversy
having no connection with the original cause of
action, or whether it merely brings on record
additional facts and consequential reliefs having a
direct nexus with the existing controversy. On the
facts of the present case, the proposed amendment falls
within the latter category. The subject matter of the
proposed amendment and the original suit
substantially overlap, and the adjudication of the
proposed issue would have a direct bearing upon
the title and possession claimed in respect of the
suit property.
xxx xxx xxx
19. The objection as to prejudice also does not
warrant rejection of the amendment. The prejudice
relied upon by the respondents principally arises
from the additional factual and legal issues which
they would now be required to meet. Such prejudice
can adequately be addressed by permitting the
respondents to file an additional written statement
and where necessary, by imposing appropriate
costs. The mere fact that an amendment requires
the opposite party to meet additional pleadings or
issues does not, by itself, warrant refusal of the
amendment where the amendment is necessary for
a complete and effective adjudication of the
controversy.”
[Emphasis Supplied]
12. The Supreme Court in Chander Kanta Bansal v.
2
Rajinder Singh Anand , held that an amendment sought
2
(2008) 5 SCC 117
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after commencement of trial is not absolutely barred and
may be permitted where the applicant establishes that,
despite the exercise of due diligence, the matter could not
have been raised before commencement of trial. The Court
further held that, even where considerable delay has
occurred, the amendment may be considered if acceptable
material demonstrates that the delay was beyond the
applicant’s control or that the applicant had exercised due
diligence, with the prejudice to the opposite party being
capable of compensation by an award of costs. The
Supreme Court emphasised that the question of due
diligence must be determined having regard to the facts and
circumstances of each case. The relevant extract is set out
below:
“12. With a view to shorten the litigation and speed up the
trial of cases Rule 17 was omitted by amending Act 46 of
1999. This Rule had been on the statute for ages and there
was hardly a suit or proceeding where this provision had
not been used. That was the reason it evoked much
controversy leading to protest all over the country.
Thereafter, the Rule was restored in its original form
by amending Act 22 of 2002 with a rider in the shape
of the proviso limiting the power of amendment to some
extent. The new proviso lays down that no
application for amendment shall be allowed after
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the commencement of trial, 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. But whether a party has acted
with due diligence or not would depend upon the facts and
circumstances of each case. This would, to some extent,
limit the scope of amendment to pleadings, but would still
vest enough powers in courts to deal with the unforeseen
situations whenever they arise.
13. The entire object of the said amendment is to
stall filing of applications for amending a pleading
subsequent to the commencement of trial, to avoid
surprises and the parties had sufficient knowledge of the
other's case. It also helps in checking the delays in filing
the applications. Once, the trial commences on the
known pleas, it will be very difficult for any side to
reconcile. In spite of the same, an exception is made
in the newly inserted proviso where it is shown that
in spite of due diligence, he could not raise a plea, it
is for the court to consider the same. Therefore, it is
not a complete bar nor shuts out entertaining of any
later application. As stated earlier, the reason for
adding proviso is to curtail delay and expedite
hearing of cases.
xxx xxx xxx
15. As discussed above, though first part of Rule 17 makes
it clear that amendment of pleadings is permitted at any
stage of the proceeding, the proviso imposes certain
restrictions. It makes it clear that after the
commencement of trial, no application for amendment
shall be allowed. However, if it is established that in
spite of “due diligence” the party could not have
raised the matter before the commencement of trial
depending on the circumstances, the court is free to
order such application.
16. The words “due diligence” have not been defined in
the Code. According to Oxford Dictionary (Edn. 2006), the
word “diligence” means careful and persistent application
or effort. “Diligent” means careful and steady in
application to one's work and duties, showing care and
effort. As per Black's Law Dictionary (18th Edn.),
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“diligence” means a continual effort to accomplish
something, care; caution; the attention and care required
from a person in a given situation. “Due diligence”
means the diligence reasonably expected from, and
ordinarily exercised by a person who seeks to
satisfy a legal requirement or to discharge an
obligation. According to Words and Phrases by
Drain-Dyspnea (Permanent Edn. 13-A) “due
diligence”, in law, means doing everything
reasonable, not everything possible. “Due
diligence” means reasonable diligence; it means
such diligence as a prudent man would exercise in
the conduct of his own affairs.
xxx xxx xxx
18. As rightly referred to by the High Court in Union
of India v. Pramod Gupta [(2005) 12 SCC 1] this
Court cautioned that delay and laches on the part of
the parties to the proceedings would also be a
relevant factor for allowing or disallowing an
application for amendment of the pleadings.
19. As observed earlier, the suit filed in the year
1986 is for a right of passage between two portions
of the same property dragged for a period of 21
years. In spite of long delay, if acceptable
material/materials placed before the court show
that the delay was beyond their control or diligence,
it would be possible for the court to consider the
same by compensating the other side by awarding
costs. As pointed out earlier, when she gave evidence as
DW 1, there was no whisper about the written
document/partition between the parties. On the other
hand, she asserted that partition was oral. Now by filing
the said application, she wants to retract what she pleaded
in the written statement, undoubtedly it would deprive the
claim of the plaintiff. We are also satisfied that she failed
to substantiate inordinate delay in filing the application
that too after closing of evidence and arguments. All these
aspects have been considered by the High Court. We do
not find any ground for interference in the order of the
High Court, on the other hand, we are in entire agreement
with the same.”
[Emphasis Supplied]
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13. The Supreme Court, in the case of Vidyabai v.
3
Padmalatha , held that where the applicant was unable to
show that he had exercised due diligence and the
amendment could not have been allowed. The relevant
extract is set out below:
“10. By reason of the Civil Procedure Code (Amendment)
Act, 2002 (Act 22 of 2002), Parliament inter alia inserted
a proviso to Order 6 Rule 17 of the Code, which reads as
under:
“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.”
It is couched in a mandatory form. The court's
jurisdiction to allow such an application is taken
away unless the conditions precedent therefor are
satisfied viz. it must come to a conclusion that in
spite of due diligence the parties could not have
raised the matter before the commencement of the
trial. ”
[Emphasis Supplied]
14. This Court has also examined the application that the
petitioner/defendant has filed. The application sets out a
one paragraph amendment. In addition to setting out who
the petitioner/defendant is being represented by, it states
3
(2009) 2 SCC 409
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that their company Director was unwell, faced stress and
underwent depression and thus could not pursue the case.
It also states that the other family members of the
Managing Director also faced health issues and the Lawyer
to whom the matter was assigned, could not be contacted.
The paragraphs seeking amendment are set out below:
“ In cause title
After represented by its director
Insert
Mr. Madan Sampathraman
S/o. Sri. Sampath Raman,
Aged about 44 years,
Director, M/s. DPK Engineers Pvt. Ltd.
Insert after Para 2
2(a) The Petitioner Company humbly states that on
16.05.2014 the company was passed the Board resolution
and authorized one Mr. Prasanna Bairy, GM Finance, to
take care of the case filed by the Respondent Company in
O.S.No.358/2024 and thereafter the said person was
resigned his job from the Company and he was only
taking care of the original suit; Thereafter in the year
2019 again the Petitioner Company passed its
Board resolution on 19.09.2019 for filing the above
Mis Petition and authorized Mr. Madan
Sampathraman .
Insert after Para 5
5(a). It is submitted that thereafter one of the Company
Director by name Mrs. Mathura Sampathraman was
fall on sick initially she was faced cardiac problems
later she faced the stress due to that reasons she
went to depression due to that reason the Managing
Director was unable to take care of the case and
after assign the case to the Law firm the Company
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was changed the some management staffs due to
that reasons the Company was not properly
followed the case and not given the instructions to
the Lawyer firm. In addition to the afore said crunch the
Managing Director and other family members are
also faced health issues and several other personal
issues which this aloof from the happenings of the afore
said case. And the lawyer to whom the matter was
assigned could not be contacted as the company lost
contact due to the change of phone number and shifting
of lawyer's office which did not know.”
[Emphasis Supplied]
14.1 The affidavit as annexed to this application sets out
that the petitioner has filed the miscellaneous petition as
soon as it received the warrants for attachment in the
execution proceedings. It further sets out that due to the
ill-health of the Director of the Company, these
amendments could not be sought for earlier since an ex-
parte judgment was passed. The relevant extract is below:
“3. I state that after the judgment the Respondent
filed the execution petition while the warrant was
served the Petitioner know the said proceedings
and immediately filed the above Mis Petition .
4. It is further stated that in the year 2019 the company
passed the Board resolution to file the above Mis petition
and while filling the same due to communication problems
are faced by the advocate and due to ill health the
present Director of the company was not properly
given the instructions to the advocate and the
advocate left certain grounds on the Mis Petition
and recently while discussing the issues involved in
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the above case the Managing Director was requested to
incorporate the things while are really happens at the time
of exparte judgment. Hence, this application. I state that
the above narrated facts were not within my knowledge
and are only subsequent to the filing of the above suit.”
[Emphasis Supplied]
15. In any event, as can be seen from the aforegoing, the
amendment sought for is a one paragraph amendment. The
delay in filing the petition could be compensated by costs.
16. In view of the settled position in law that even post-
trial amendments may be allowed with a view to do
substantive justice qua the parties, and given the fact that
this Miscellaneous Petition is pending for seven years, and
this petition is pending before this Court for 2½ years and
all proceedings before the learned Trial Court have been
stayed by an order dated 02.04.2024, with a view to ensure
that the matter moves forward, this Court is of the view that
substantive justice would be done to both parties if this
petition is disposed of, taking the amendment on record
subject to costs in a sum of Rs.10,000/- to be paid by the
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petitioner/defendant to the respondent/plaintiff on the next
date of hearing.
17. In view of the aforegoing discussion, the petition is
allowed subject to payment of cost in the sum of
Rs.10,000/- (Rupees Ten Thousand) to be paid by the
petitioner/defendant to the respondent/plaintiff on the next
date of hearing. I.A. No.5 under Order 6 Rule 17 of the CPC
seeking amendment of the petition filed in Miscellaneous
Petition No.89/2019 is consequently allowed. Accordingly,
the order dated 27.03.2024 is set aside.
18. It is clarified that the respondent/plaintiff is at liberty
to take all objections and raise all contentions in its defence.
The rights and contentions of both parties are left open to
be agitated before the learned Trial Court.
19. The parties are also at liberty to file appropriate
applications in terms of the submissions made and recorded
by this Court today.
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20. All pending applications stand closed.
Digitally signed by
TARA VITASTA GANJU
Location: HIGH COURT
OF KARNATAKA
(TARA VITASTA GANJU)
JUDGE
JJ/KS / List No.: 1 Sl No.: 14
20