1. This petition challenges the order of the trial Court passed in Special Civil Suit No.441 of 2008 on 6.9.2011 below Exh.10, whereby the request of the present petitioner original plaintiff to amend the plaint has been disallowed.
2. The petitioner original plaintiff filed the said suit for declaration and permanent injunction wherein it is urged inter alia that the deed of cancellation dated 15.7.2008 registered at Serial No.13852, deed of cancellation dated 15.7.2008 registered at Serial No.13853 and general power of attorney dated 9.11.2006 issued by the original defendants No.1/1 to 1/9 in favour of defendant No.2, are without considerations, null and void and not binding to the plaintiffs.
3. This suit is in respect of the property admeasuring 0-37- 64 hectares are sq.meters bearing Survey No.402/2 and land admeasuring 0-37-64 hectares are sq.meters bearing Survey No.402 situated at Village: Gota, Taluka: Dascroi, District & Sub-District: Ahmedabad. Under an agreement to sell dated 18.1.1985, the suit land was agreed to be sold to plaintiffs No.2 and 3 by defendants, which was registered at Serial No.861. This was handed over to plaintiffs No.1 and 2 by way of declaration dated 18.1.1985. The sale deed was executed on 11.4.2001 in favour of plaintiff No.1, which was registered at Serial No.2240 on 29.5.2001.
4. Defendants filed Special Civil Suit No.41 of 2002 (re- numbered as (Regular Civil Suit No.100 of 2006) alleging that sale deed in favour of the plaintiff was illegal. Application of injunction was rejected therein. The memorandum of understanding was signed between the parties for recording of settlement and under the said settlement, plaintiff agreed to sell the suit land to defendants No.1/1 to 1/4 for consideration of Rs. 3 crores, out of which Rs.21 lakhs was paid on 21.10.2007 but the balance was not paid as stipulated. Civil Suit No.100 of 2006 was unconditionally withdrawn by the defendants on 11.1.2008.
5. The plaintiff (petitioner) filed Regular Civil Suit No.439 of 2002 for declaration and injunction with reliefs as mentioned hereinabove and injunction was granted by the Court directing the maintenance of status quo in respect of suit land on 9.3.2004. The defendants filed application under Order 7 Rule 11 of the Civil Procedure Code for rejecting the plaint on the ground that cancellation was already executed. The plaintiff did not receive any amount as mentioned in the cancellation deed. According to the plaintiff, the registered sale deed was in force from 29.5.2001. 2 cheques dated 15.7.2008 for the sum of Rs.1,64,85,500/- drawn under the Vijay Co-operative Bank Ltd., Gota and another cheque of the same amount drawn on the same Bank were issued in favour of the plaintiff No.3 and both were dishonoured.
6. When plaintiff came to know that prior to the execution of deed of cancellation, defendant had already sold the suit land by a registered sale deed on 19.3.2008 in favour of the proposed plaintiffs, it filed an application under Order 6 Rule 17 of Civil Procedure Code for impleading the purchasers of the property and such request has been rejected.
7. Heard learned advocates for the parties and with their assistance and material on record of the order impugned is examined. It is mainly contended by the respondent side in this petition that trial Court has rightly held that allowing the amendment would change the very nature of the suit.
8. For the reasons to follow hereinafter, there would be a need for interference in this petition under supervisory jurisdiction.
8.1 It would be desirable to reproduce Order 6 Rule 17 of the Code of Civil Procedure, at this stage:-
“17. Amendment of Pleadings:- The Court may at any state of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
9. Ordinarily, the Court should be liberal in allowing the amendment of the pleadings unless it challenges the very nature of the suit or it causes serious prejudice to the defence of the other side. If amendment is necessary for determining the real controversy existing by and between the parties, ordinarily the Court should not refuse the grant of such amendment.
10. As can be clearly noted that the suit has been filed on 16.10.2008 and the prayers sought for are for declaration as well as injunction, particularly to declare all the other three documents registered i.e. Sr. Nos.13852,13853 and power of attorney document dated 9.11.2006 to be illegal and contrary to the provisions of law.
11. At a first glance, the submission of the learned advocate for the respondents may look attractive that the suit is purely and totally for getting back monetary consideration from the original owners and in any such transactions, proposed parties would not figure as they are not privy to such transaction between the petitioner herein and original sellers. The Court, in its impugned order, was also actuated by the fact that the transaction of registered sale deed executed in favour of the proposed parties was much before the suit was preferred and therefore, the petitioner herein ought to to have incorporated in the same in the plaint itself. Material aspect that requires consideration is as to whether the petitioner plaintiff could have preferred the suit against the third party in such circumstances and the answer since is in affirmation, for minimizing the litigations between the parties, the amendment is required to be allowed. Moreover, it needs to be noted that the sale deed executed in favour of the present respondent (proposed parties) is of March, 2008 and thus, original owners (defendants) without cancelling the deed, executed the registered sale deed in respect of the very suit land in favour of the proposed parties and the entire amount agreed to be paid for sustaining cancellation also never came to be paid in the above circumstances, therefore, also the petitioner plaintiff certainly would have the cause to implead the purchaser as party respondents. Moreover, in the registered sale deed of the proposed parties also there are specific covenants where there is a reference of petitioner as the owners of the suit land and also of the sale deed having been executed in their favour pursuant to the cancellation. Thus such entitlement can arise for transferring the suit land in favour of the proposed parties once cancellation comes into effect. In any which way, in the opinion of this Court, to determine the real controversies between the parties, the proposed parties are, if not necessary parties, are surely proper parties. Therefore, the order impugned is required to be quashed. This petition is resultantly allowed permitting the proposed amendment to be carried out within 14 days of the receipt of this order before the trial Court. None of the observations made hereinabove shall prejudice the interest of either side when the trial Court finally adjudicates these issues.
Petition is disposed of accordingly.
(Ms.Sonia Gokani, J.) sudhir