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Tarunkumar Navinchandra Majethiya ­

High Court Of Gujarat|09 July, 2012
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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================================= RATANKAR JADAVRAY DHOLAKIA ­ Petitioner(s) Versus TARUNKUMAR NAVINCHANDRA MAJETHIYA ­ Respondent(s) ========================================================= Appearance :
MR BY MANKAD for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR KIRTIDEV R DAVE for Respondent(s) : 1, MR RAHUL K DAVE for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 09/07/2012 ORAL JUDGMENT
1. This petition challenges the order of the trial court passed in Regular Civil Suit No. 264 of 2000 on application below Exh. 56 seeking amendment in the plaint under Order 6, Rule 17 of the Code of Civil Procedure.
2. The petitioner is the original plaintiff who is the owner of the property. On account of devastating earthquake on 26th January 2001, office of the petitioner was materially damaged. It is the say of the petitioner that the suit shop on the ground floor and below the office of the petitioner also collapsed. In Special Civil Suit NO. 21 of 2004 instituted by the respondent herein against the petitioner and the government it was admitted by the respondent that suit shop does not exist for having been destroyed on account of earthquake. It is the say of the petitioner that application Exh. 56 was moved for amending the plaint of the Regular Civil Suit No. 264 of 2000 to avoid any future litigation and multiplicity of proceedings. However, by erroneous reasonings the Court denied such request and therefore this petition under Article 227 of the Constitution of India.
3. On issuing of the notice learned advocate appeared for the respondent. Affidavit in reply is filed by the respondent inter alia urging that the trial court has dismissed the application by a well reasoned order which requires no interference under Article 227 of the Constitution of India.
3.1 It is further contended that the application for the petitioner is based on incorrect and misleading statement. The respondent in Regular Civil Suit No. 21/04 has specifically contended that the suit shop was damaged and state authority tried to remove the same in the year 2003. It is also the say of the respondent that the concerned building did not collapse in the earthquake but, was found in a dilapidated state and the application for amendment is clearly an after thought. It is a deliberate attempt on the part of the petitioner to delay the suit and taking disadvantage of the pendency of other suit being Regular Civil Suit No. 21/04. The petitioner is wanting to bring about the amendment which changes the very nature of the suit. After nearly a decade, such amendment is sought for and the same should not be allowed since as owner the petitioner is required to keep tenanted premises in a good condition which he has not done.
4. On thus having heard learned advocate for the parties and on having examined the order impugned no interference is found necessary.
5. Ordinarily the amendment in the plaint is to be allowed liberally as the objective is to minimise the litigation between the parties and also to effectively adjudicate controversy which is at large before the Court. In other words, all such amendments which are necessary for the purpose of determining the real questions in controversy between the parties can be allowed by the Court at any stage of proceedings. At pretrial stage, more liberal approach is expected from the Court and admittedly recordance of evidence has yet not begun in a regular civil Suit No. 264/2000.
6. At this stage an application has been preferred inter alia urging ' that whereever there is a reference of “suit shop” the same be construed as “open space/open land”. Reliance is placed on deposition of respondent herein in Special Civil Suit No. 21/04. The trial court in the impugned order noted that the petitioner himself is an advocate being fully aware of the fact that if there was no 'suit shop' but 'an open land' he could have incorporated the same from the inception. Moreover, he could not have taken long ten years for making request of such amendment. Even if there was a record for the building where this 'suit shop is situated was classified in G5 category that would not ipso facto mean that the building had collapsed.
7. In a detailed discussion the trial court has rightly held that the proposed amendment is nothing but an attempt to change the very nature of the suit by twisting facts and allowing such amendment would amount to causing serious prejudice to the respondent herein. Circumstances of damage due to natural calamity like the earthquake cannot be permitted to be misused and no party can be allowed to take disadvantage of such unfortunate circumstances. This petition being devoid of any merits deserves no meritorious consideration. The order impugned does not come either in the category of having been based exceeding the jurisdiction not having caused material illegality to affect the right of the petitioner.
6. Resultantly the same is dismissed.
(Ms. Sonia Gokani,J.) mary//
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Tarunkumar Navinchandra Majethiya ­


High Court Of Gujarat

09 July, 2012
  • Sonia Gokani
  • Sonia
  • Mr By Mankad