The petitioner, plaintiff in O.S.No.134/2013 on the

file of the Principal Civil Judge and Judicial Magistrate First

Class at Kundapura (for short, ‘Trial Court’) is before this

Court challenging order dated 05.07.2023 rejecting

I.A.No.12 filed under Order VI Rule 17 of CPC to amend

the plaint to include the prayer, directing the defendant to

execute sale deed of suit ‘A’ schedule property.

2.

Heard the learned counsel Sri.K.Srihari for

petitioner/plaintiff. Perused the writ petition papers.

3.

Learned counsel for the petitioner/plaintiff

would submit that petitioner/plaintiff filed suit with a

prayer for judgment and decree of permanent injunction

restraining the defendant from alienating ‘A’ schedule

property to any third party or creating charge on ‘A’

schedule property in any manner. When the suit after

recoding evidence of plaintiff, was at the stage of cross-

examination

of

DW1,

the

petitioner/plaintiff

filed

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application under Order VI Rule 17 of CPC to amend the

plaint to include additional averment to say that plaintiff

has always been ready and willing to pay the balance sale

consideration and the defendant has failed to execute sale

deed by obtaining 11-E Sketch. Further, by way of

amendment, petitioner/plaintiff intends to add additional

prayer of specific performance to execute sale deed of suit

‘A’ schedule property in favour of plaintiff or his nominee.

Learned counsel for the petitioner/plaintiff would submit

that defendant has admitted the contract between the

parties and also admitted to carryout all the necessary

documentation including 11-E Sketch. It is submitted that

at the time of filing plaint, proper prayer was not included.

Hence, it has become necessary for the plaintiff to file

present amendment application. It is also submitted that

petitioner/plaintiff

categorically

mentioned

about

the

agreement entered into between petitioner/plaintiff and

respondent/defendant and the defendant also categorically

admitted that he had entered into a sale agreement dated

28.06.2012 by receiving Rs.10,00,000/-. Since certain

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documents were not available as on the date of filing to

support

the

prayer

for

specific

performance,

the

petitioner/plaintiff could not seek prayer for specific

performance. Learned counsel for the petitioner/plaintiff

would submit that amendment could be allowed to avoid

multiplicity of proceedings and further submits that no

prejudice would be caused to the respondent/defendant if

the amendment is allowed, since there is clear admission

by respondent/defendant of entering into sale agreement

with petitioner/plaintiff. Thus, he prays for allowing the

writ petition.

4.

On

hearing

the

learned

counsel

for

the

petitioner and on perusal of the writ petition papers, I am

of the view that petitioner/plaintiff has not made out any

ground to interfere with impugned order for the following

reasons:

5.

Order

VI

Rule

17

of

CPC

provides

for

amendment of pleadings. In terms of the said provision

the Court may at any stage of the proceedings allow either

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of the parties to alter or amend pleadings in such manner

and on such terms, as may be just and necessary for the

purpose of determining real questions in controversy

between the parties. But the proviso to Rule 17 puts

restriction on the Court, while considering amendment

application

after

commencement

of

trial.

If

the

amendment sought is after commencement of trial, unless

the Court is satisfied with regard to due diligence, that the

party

could

not

have

raised

the

matter

before

commencement of trial, the Court would not get

jurisdiction to allow such application.

6.

The petitioner/plaintiff filed suit with a prayer

for judgment and decree of permanent injunction to

restrain the defendant from alienating or creating charge

on the ‘A’ schedule property. The suit after plaintiff’s

evidence admittedly is at the stage of cross-examination

of DW1. The amendment to prayer column is to add a

direction to the defendant to execute sal