IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 487 of 2012
For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MERUBHAI MOHANBHAI & 1 - Petitioner(s) Versus
BABUBHAI LAXMANBHAI LATHIYA & 8 - Respondent(s)
========================================================= Appearance :
MR BM MANGUKIYA for Petitioner(s) : 1 - 2.MS BELA A PRAJAPATI for Petitioner(s) : 1 - 2.
MR RUTVIJ S OZA for Respondent(s) : 1 - 2. None for Respondent(s) : 3, 8, Ms. Rekha Patel, Ld.AGP for Respondent(s) : 4 - 5. UNSERVED-EXPIRED (N) for Respondent(s) : 6 - 7.
NOTICE SERVED BY DS for Respondent(s) : 9, =========================================================
CORAM : HONOURABLE MS JUSTICE SONIA GOKANI
ORAL JUDGMENT
Date : 05/07/2012
1. Petitioners herein are the original defendants of Special Civil Suit No. 73/98. They have challenged the order of the learned Civil Judge allowing the application preferred vide exh.59 by its order dated 23rd September, 2011, whereby it permitted the amendment of the plaint to the original plaintiffs-respondent No.1 & 2 herein.
2. Learned advocate Mr.B.M.Mangukiya appearing for the petitioner has fervently submitted that the amendment sought for is ex-facie time barred and fresh suit cannot be preferred on the basis of averments set- out in the application for amendment. He further urged that from the time respondents preferred this suit, he was aware of the details and yet for the reasons best known to him, when they chose not to challenge the subsequent registered sale deed of the year 1998, such amendment which changes the very nature of the suit and seriously prejudice the rights of the petitioners aught not to be allowed at a such belated stage. He has relied upon the following judgements to substantiate his version:
1. A.K.Gupta and Sons Ltd. Vs. Damodar Valley Corporation reported in AIR 1967 SC 96
2. Raj Kumar Vs. Dipender Kaur Sethi reported in (2005) 9 SCC 304
3. Vijendra Kumar Goel Vs. Kusum Bhuwania (Smt.) reported in (1997) 11 SCC 457
4. Van Vibhag Karmachari Griha Nirman Sahakari Sanstha Maryadit (Regd.)Vs. Ramesh Chander and Ors.reported in AIR 2011 SC 41
5. K.Raheja Constructions Ltd and another Vs. Alliance Ministries and others reported in 1995 Supp(3) SCC 17
6. Sampath Kumar Vs.Ayyakannu and another reported in AIR 2002 SC 3369
3. Learned advocate Mr.Viral Shah appearing for the original plaintiffs -respondent No.1 and 2 herein has urged that the petition itself has become infructious in as much as the amendment allowed by the Court has been carried out before filing of this petition and petitioners themselves also filed reply of such amended plaint. He further urged the Court that right was reserved by the respondents to make necessary changes. As rightly held by the trial Court, this amendment does not alter the basic structure of the suit. He has relied upon the decision of this Court rendered in case of Divyaben Kiritbhai Masuriya & another Vs. Nayanaben Gordhanbhai Patel and another reported in SCA 4033 of 2012 and urged that the issue of limitation being the mixed question of law and facts, no interference is called for.
4. Thus, having heard learned advocates for the parties for the reasons to be followed hereinafter, this petition is not to be entertained.
5. At the outset, it needs to be noted that before filing of this petition the order passed on 23rd September, 2011 is already implemented. As rightly pointed out by learned advocate for the respondents that Order VI Rule 18 of CPC requires to carry out the amendment within 14 days if no time is prescribed in the order by the Court concerned. Thus, statutorily within the period specified, it appears that the respondents -plaintiffs have already carried out the same . It is also to be noted that written statement to the amendment plaint has also been filed by these petitioners on 22nd February, 2012 which is done pending this petition.
6. Suit preferred by the respondents is for declaration and permanent injunction. Respondent Nos. 1 and 2 claimed the possession and ownership in respect of the suit land by virtue of registered sale deed executed on 4.8.1996 being No. 706. Permanent injunction in respect of suit land bearing Survey No. 148 has also been sought for. The suit has been preferred on 30th April, 1998 and Paragraph 10 of the plaint specifically mentioned that respondents do not have detailed information as to in whose favour or what type of writing have been prepared by the petitioners and other respondents. Therefore, they had reserve their rights to seek relief for cancellation of those documents as and when the same come to the notice and knowledge of the respondents. They also reserved their rights for making necessary amendment in the plaint on the basis thereof.
7. As can be noted that vide Exh. 59, an application was tendered by the respondent No.1 and 2 -plaintiffs inter alia urging that original defendants Nos. 1,2 and 3 in collusion with defendant No. 9 have attempted to sale the suit land by registered sale deed dated 20th January, 1998 and that document is void ab initio. Therefore, relief clause is sought to declare the revenue entry mutated on the basis thereof as nullity and illegal.
8. The trial Court allowed this amendment on the ground that there is no new ground made out by way of amendment nor is any serious prejudice likely to be caused to the defendants Thus, considering the fact that rights were reserved by the respondents-plaintiffs in paragraph 10 of the plaint as also on being satisfied that the amendment concerned did not change the basic structure of the suit and that the same was incapable to affect to the prejudice of rights of the other side, trial Court deemed it fit to allowed such an amendment.
9. Even without considering the factum of execution of such an order by the parties, on an independent examination of the averments set-out in the plaint and written statement as also pleadings made out in the application of amendment, no error could be pointed out in the order impugned. This Court is required to sparingly exercise its jurisdiction in the order impugned neither there is any jurisdictional error nor any illegality causing grave injustice to the other side. This amendment in the plaint was requested for before filing of the written statement of the petitioners herein, as such application was moved on 19th August, 2002.
10. Subsequently on 26th September 2002, written statement has been preferred and although respondents- plaintiffs cannot claim the knowledge of such documents from written statement,they have sought to place on record their knowledge as soon as the said fact came to their knowledge for which they had already reserved such rights for being apprehensive of such transfer even at the time of filing of the suit.
11. Be that it may, when one examines the allowance of such amendment at the touchstone of statutory provision embodied under Order VI Rule 17 of CPC. It can be unfailingly said that it is discretion of the Court concerned to be exercised and to allow such an amendment for deciding the real controversy between the parties. As already noted hereinabove, dispute pertains to the suit land in respect of which plaintiff -respondent No.1 and 2 herein claim their ownership by virtue of registered sale deed in the year 1996. Any subsequent transfer on the part of defendants to the third party if is challenged in the very same suit, on the contrary should be allowed to prevent the multiplicity of the proceedings between the parties. Amendment concerned in no manner changes the nature of the suit. Defendants also are certainly not prejudiced by such an allowance, if amendment already moved prior to filing of their written statement, they were aware of such contentions while filing the reply . The plea of prevention of such sale on account of Bombay Prevention of Fragmentation And Consolidation of Holdings Act, 1947 (hereinafter referred to as “the Act” for short) has taken and all these aspects can be examined by the Court at the time of trial.
12. The only issue is in respect of limitation and in the written statement itself petitioners herein has urged the Court to frame the issue of limitation as preliminary issue, mainly basing the same on the statutory provisions and the precedents on the subject. The ratio laid down in the authorities sought to be relied upon by the petitioners herein, this Court is bound by of course however, the factum of the instant case will not permit this Court to deny the allowance of amendment in wake of the facts hereinabove. Each case will have to be considered on the basis of peculiar facts they possess. Two material and vital aspects which need to be regarded by the Court are whether the amendment changes the basic structure of the suit and secondly, whether the same causes serious prejudice to the valuable accrued rights of the other side. While considering second consideration, the issue of limitation shall have to be regarded briefly. It would be appropriate to reproduce relevant findings on the subject from SCA No. 4033/ 2012, wherein this Court has held thus :
23. In the case of Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Ors., reported in 2012 STPL (Web) 198 SC, while deciding the purpose of Rule VI Order 17 of Civil Procedure Code, the Supreme Court held that the application for amendment ordinarily must not be refused, if there is a bonafide, legitimate and honest cause necessiting amendment however, malafide and dishonest amendment should never be permitted. It is further held by the Supreme Court as under:
“11. It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fine, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Noramally, amendments are allowed in the pleadings to avoid multiplicity of litigations.
12. In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and amendment application was in 2008) i.e. before commencement of the trial and taking note of the fact that the learned single Judge confined the explain how the money was paid, though necessary averments in the form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants.”
The Court also referred to the case of Ravajeetu Builders & Developers Vs. Narayanaswamy & Sons & Ors., reported in (2009) 10 SCC 84 has held as under:
“10.In Ravajeetu Builders & Developers Vs. Narayanaswamy & Sons & Ors., reported in (2009) 10 SCC 84, this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows:
Factors to be taken into consideration while dealing with applications for amendments
63. On critically analysing both the English and Indian cases, some basic principles emerges which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fine or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while deadling with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”
24. Thus, what can be deduced from on the basis of the discussion held hereinabove and the case laws that the courts are required to adopt liberal approach while addressing the issue of amendment to the pleadings. Any bona-fide and legitimate amendment sought to be incorporated by the party should be permitted and the very purpose of the amendment since is to minimize the litigation between the parties, so as to avoid multiplicity of the proceedings. Ordinarily the Court required to avoid hyper technical approach in deciding the request of amendment.
25. If the amendment is found necessary for adjudication of the dispute between the parties, the same has to be allowed but such amendment must not change the basic nature of the suit and it must not prejudice the cause of the other side in such a manner that no compensation would be adequate in terms of money. As held in the case of Puran Ram v. Bhagu Ram and others, reported in AIR 2008 SC 1960 depending on the view expressed in case of Pankaja V. Yellappa reported in (2004) 6 SCC 415, While allowing the amendment, the Court should regard facts and circumstances of each case on judicious evaluation and even if allegedly time barred, such discretion can be exercised in appropriate cases. The Court can frame that as one of the issues, to be decided at the time of trial and in the event of such circumstances existing on the record, amendment can be allowed.
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29. Again, assuming for a moment that this being a question of limitation is also a question of law and facts, to be determined by the Court, that can be decided by the court concerned while trying the suit. Since the rights are being pleaded under the statute on both the counts, that (i) this amendment does not change the nature of the suit and is necessary to avoid multiplication of proceedings and (ii) the question of limitation can be tried at the time of trial of the suit, it will not entitle the petitioners herein to succeed in the present petition nor would that in any manner require this Court to assail the impugned order of the Trial Court. There does not appear to be also a question of taking away accrued right of other side.
13. Resultantly, it can be held that the amendment would not change or alter the basic structure of the suit and the same is necessary for determining the dispute between the parties. Again, both the sides will be given ample opportunities to contest all these issues at an appropriate time, including the question of limitation for the same being the mixed question of law and facts, such challenge at this stage cannot be concluded.
14. Even otherwise this petition is preferred under Article 227 of Constitution of India The ratio laid down in case of Surya Dev Rai Vs. Ram Chnder Rai and others reported in (2003) 6 SCC 675 and Kokkanda B. Poonbacha and others Vs. K.D.Ganapathi and another reported in (2011) 12 SCC 600 will not permit this Court to interfere as no such grounds exist for invoking supervisory jurisdiction.
Hence, this petition does not succeed and stands disposed of in the terms above.
(Ms.Sonia Gokani,J) bina