IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 23^RD DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO.107506 OF 2025 (GM-CPC)

BETWEEN:

BASAVANNEAPPA MALLESHAPPA NANDGAD, AGE. 72 YEARS, OCC. AGRL., R/O. GURUWARPETH, TQ. KITTUR, DIST. BELAGAVI-591115.

…PETITIONER (BY SRI. LAXMAN T.MANTAGANI, ADVOCATE)

AND:

1. SMT. SUNANDA MAHABALESHWAR NANDGAD, AGE. 55 YEARS, OCC. HOUSEHOLD WORK, R/O. GURUWARPETH, TQ. KITTUR, DIST. BELAGAVI-591115.

2. MAHANTESH YALLAPPA DIWANADA, AGE. 51 YEARS, OCC. AGRL., R/O. GURUWARPETH, TQ. KITTUR, MOHANKUMAR DIST. BELAGAVI-591115.

B SHELAR …RESPONDENTS (BY SMT. ANKITA V.TALAWAR, ADVOCATE FOR SRI. GANGADHAR S.HOSAKERI, ADVOCATE FOR R1;

Digitally signed by MOHANKUMAR B NOTICE TO R2 IS SERVED)

SHELAR Date: 2026.04.06 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227

12:06:04 +0530 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 17.09.2025 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE, BAILHONGAL, IN O.S.NO.162/2021 VIDE ANNEXURE-E, ON I.A. NO.X, FILED UNDER ORDER VI RULE 17 CPC AND ETC.,.

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

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

1. The petitioner has filed this writ petition challenging the order on I.A. No.X dated 17.09.2025 passed in O.S. No.162/2021 by the learned Senior Civil Judge, Bailhongal vide Annexure-E.

2. Brief facts, leading rise to the filing of this petition are as follows:

Respondent No. 1 filed a suit in O.S. No.162/2021 seeking the relief of partition and separate possession. The petitioner entered appearance and filed a written statement denying the averments made in the plaint. Thereafter, upon collecting bills and vouchers, the petitioner filed I.A. No.X under Order VI Rule 17 R/W Section 151 of the Code of Civil Procedure (for shrot, ‘the CPC’), seeking amendment of the written statement to incorporate a counterclaim for reimbursement of the expenditure incurred towards layout formation.

3. The said application was opposed by respondent No. 1 by filing objections.

4. The Trial Court, after hearing the learned counsel for the parties, rejected the application vide order dated 17.09.2025. Aggrieved by the same, the petitioner has filed this writ petition.

5. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondents.

6. The learned counsel for the petitioner submits that a counterclaim can be raised even after framing of issues and that the Trial Court has committed an error in rejecting I.A. No.X. In support of his contention, he has placed reliance on the judgment of the Hon’ble Apex Court in Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri¹. Hence, he prays to allow the writ petition.

7. Per contra, the learned counsel for the respondents submits that the application for amendment has been filed after commencement of trial. She submits

(2020) 2 SCC 394

that the application is not maintainable, as the petitioner has failed to plead that despite due diligence, he could not have sought the amendment earlier. In support of her arguments, she has placed reliance on the judgment of the Hon’ble Apex Court in Pandit Malhari Mahale v. Monika Pandit Mahale and Others²

8. She further submits that a counterclaim ought to be made before framing of issues and not at a belated stage when the matter was posted for cross-examination of PW1. Therefore, on these grounds, she prays for dismissal of the writ petition.

9. Perused the records and considered the submissions made by the learned counsel for the parties.

10. Respondent No. 1 filed the suit for partition and separate possession in O.S.No.162/2021. The petitioner appeared and filed his written statement. The Trial Court framed issues, and Respondent No.1 was examined as PW1.

(2020) 2 SCC 549

His cross-examination had commenced, and the matter was posted for further cross-examination.

11. At that stage, the petitioner filed I.A. No.X seeking amendmen