CAV ORDER

1. The present writ petition is filed seeking to issue writ of certiorari to quash the order dated 23.11.2022 on I.A under Order VI Rule 17 of the CPC passed in O.S.No.123/2014, on the file of the learned Senior Civil Judge, and JMFC Tumakur (‘the trial Court’ for short) and further sought to allow I.A permitting amendment of plaint.

2. The petitioner herein is the plaintiff before the Trial Court and the respondent herein is the defendant before the Trial Court.

3. Heard learned counsel appearing on either side.

4. The brief facts of the case are that:-The plaintiff instituted a suit in O.S.No.123/2014 seeking relief of declaration that the sale deed dated 31.03.2011 vide Book No.I bearing TMK-1-14309-2010-11 and CD No.TMKD340 registered before the office of Sub- Registrar Tumakur as null and void and for mandatory injunction to restore possession of the suit schedule property.

5. The petitioner submits that the present proceedings arose due to the fraudulent conduct of the respondent. On the date of registration of the sale deed, the respondent issued a Demand Draft (DD) No.105398 dated 31.03.2011 for Rs.5,00,000/- drawn on M/s.Karnataka Bank, Koratagere, in favour of the petitioner. However, when DD was presented for encashment, it was returned with the endorsement “demand draft lost.” On enquiry, the petitioner discovered that the respondent had complained to the bank claiming loss of the DD and directed that payment to be stopped. Despite repeated demands, the respondent refused to pay the balance sale consideration.

6. The respondent appeared and filed the written statement denying the averments made by the petitioner. The petitioner thereafter filed an application under Order VI Rule 17 of the CPC seeking amendment of the plaint to insert paragraph 7-A and amend the prayer to claim relief regarding the withholding of Rs.5,00,000/-.

7. The respondent has objected to the IA on the grounds that it is legally and factually untenable, barred by limitation, and filed without due diligence as mandated under the amended CPC. The respondent contends that the affidavit in support of the IA contains false averments and that the proposed amendment introduces a new case, alters the cause of action, and changes the nature of the suit, necessitating a de novo trial, thereby causing serious prejudice and irreparable harm to the LR’s of the defendant. However, the learned Trial Court dismissed the application on the ground that it was belated and filed after commencement of trial.

8. It is contended by the learned counsel appearing for the petitioner that the learned Trial Judge committed a grave error in rejecting the I.A solely on the ground of delay, without appreciating that the proposed amendment neither alters the nature of the suit nor prejudices the parties. The amendment is necessary to avoid multiplicity of proceedings and to effectually resolve the dispute between the parties. Further, the observation that the matter pertains to the year 2014 and that allowing the application would lead to protraction is erroneous, as the delay is attributable to both parties having approached this Court twice each since the institution of the suit, and cannot be a ground to reject the application.

9. Aggrieved by the rejection of the amendment application, the petitioner submits that the order has caused serious prejudice. The learned Trial Court erred in dismissing the I.A., leaving the petitioner with no other effective remedy. Hence, the petitioner has preferred this writ petition challenging the order dated 23.11.2022 passed by the learned Senior Civil Judge and JMFC, Tumkur, rejecting the I.A. under Order VI Rule 17 in O.S.No.123/2014.

10. In support of his contentions, learned counsel for the petitioner relied on the judgment of Apex Court in the case of Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel reported in (2021) 20 SCC 210.

10. The proviso to Order 6 Rule 17 CPC provides that no application for amendment shall be allowed after th