[1] Following prayers are made in the petition by the petitioner – original plaintiff :
(a) That this Hon’ble Court be pleased to admit and allow the petition.
(b) That this Hon’ble Court be pleased to quash and set aside the order dated 31.01.2011 of the learned Addtitional Chief Judicial Magistrate.
(c) That this Hon’ble Court be pleased to grnat permission to amend the plaint under Order 6 Rule 17 of the Civil Procedure Code.
(d) That ad interim relief in terms of the aforesaid prayer clause be granted.
(e) That any other and further relief which may be deemed fit in the interest of justice be granted.
[2] Regular Civil Suit No.147 of 2002 was filed by the present petitioner – original plaintiff before the learned Civil Judge, Ahmedabad along with the injunction application. Injunction application was rejected by the learned Trial Court vide order dated 13.09.2002. Thereafter, the petitioner herein preferred appeal before the Appellate Court challenging the order dated 13.09.2002. The learned Appellate Court granted interim relief on condition to deposit Rs.15,000/. The petitioner deposited the said amount and thereafter obtained water connection.
[3] It is submitted by learned advocate for the petitioner that petitioner submitted application for amendment of the suit on 13.11.2009. It is submitted in the application that dates of bank, issuance of no due certificate of the bank, date of possession, extra cost which was incurred by the petitioner – plaintiff towards maintenance charges, such details could not be included in the plaint, and suit was filed in hurry, therefore, amendment application was submitted. It is further submitted that by way of amendment application, the petitioner can put on record certain documents which shall substantiate the case of the petitioner. Said application was rejected by the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) on 31.01.2011. Hence, this petition.
[4] Learned advocate for the petitioner – original plaintiff has relied on following decisions in support of his submissions.
(a) Sampath Kumar v/s. Ayyakannu (2002(0) GLHELSC25116
(b) Raameshkumar Agarwal v/s. Rajmala Exports Private Ltd. [(2012) 5 SCC 337]
[5] Suit is filed in the year 2002. Amendment application is submitted on 13.11.2009 i.e. almost after seven years. Suit is in progress. Considering all this facts and on perusal of the order dated 31.01.2011 passed by the learned Trial Court, this Court is of the opinion that if amendment application is allowed, entire nature of suit will be changed. Therefore, no error is committed by the learned Trial Court in passing the order below amendment application.
[6] So far as reliance placed by the learned advocate for the petitioner in the case of Sampath Kumar (supra) is concerned, in the said case, plaintiff had given application to amend the plaint to grant declaration of title and Hon’ble Apex Court had allowed the said application. So far as present case is concerned, by way of amendment the plaintiff seeks include extra cost which was incurred by the petitioner – plaintiff towards maintenance charges. Therefore, on facts, the reliance placed by the petitioner is not helpful.
[7] So far as reliance placed by the learned advocate for the petitioner in the case of Rameshkumar Agarwal (supra) is concerned, in the said case, the plaintiff had filed suit for specific performance of agreement to sale. On considering the facts of this case and present case, the decision relied on by the petitioner is not helpful.
[8] In view of above and on considering the amendment application filed by the petitioner, if the same is allowed, entire nature of suit will be changed and considering the fact that remedy is available to the petitioner to file suit for different cause of action, the petition deserve to be dismissed. No error is committed by the learned Trial Court while passing impugned order.
The petition is therefore, dismissed.
(M.D.SHAH, J.) satish