SCA/2524/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2524 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SABERABIBI WIFE OF ABDULSATTARADAM JADA - Petitioner(s) Versus SHAH JASWANTLAL KANTILAL MANG.PARTNER OF SHAH & SONI ENTERP- & 5 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1,MR SURESH M SHAH for Petitioner(s) : 1, MR UM SHASTRI for Respondent(s) : 1, MR MA MEMON for Respondent(s) : 2 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/01/2008 ORAL JUDGMENT Rule. Learned advocate Shri M.A.Memon waives service of rule on behalf of respondents Nos.3/1, 4,5 SCA/2524/2007 2/5 JUDGMENT and 6. Learned advocates appearing for the parties jointly submit that considering the nature of dispute arising in this petition, service of rule is not necessary on respondent No.1. I have heard learned advocates appearing for the parties for final disposal of the petition. 2. Petitioner is the original plaintiff who has filed regular Civil Suit No.5 of 2000 (new). During the pendency of the suit, the petitioner moved an application Ex.117 seeking amendment in the suit. By way of amendment, primarily, the petitioner wanted to add a prayer to the effect that during the pendency of the suit, since he is forcibly dispossessed, possession should be restored to him. This application was filed on 18.8.2006. The Trial Court passed the impugned order dated 21.12.2006 rejecting the application of the petitioner. For doing so, the learned Judge relied on following factors: (1)Granting amendment would result into prejudice to the defendants since the application for amendment was moved belatedly. (2)By virtue of the amendment in order 6 rule 17 of the Civil Procedure Code, such an amendment cannot be granted. It is not in dispute that the alleged dispossession took place in the year 1995. However, learned advocate for the petitioner points out that soon SCA/2524/2007 3/5 JUDGMENT thereafter the petitioner moved contempt petition before the Trial Court which was allowed. However, the affected parties carried the order in appeal. The appellate Court remanded the proceedings before the Trial Court for fresh consideration. Since the interlocutory stage was consuming too much time, the petitioner passed a purshis on 17.9.2005 agreeing that the contempt application be heard along with the suit itself. Sometime thereafter, he moved an application for amendment. It is the case of the petitioner that if no such prayer is permitted to be added, even if the petitioner ultimately succeeds, he would not be able to reclaim the possession of the suit property. On the other hand, learned advocate for the respondent Shri Memon submitted that granting amendment would prejudice the defendants and that there was gross delay in filing such an application. He further submitted that the defendants were in possession of the property even prior to the filing of the suit. At this stage, it is neither possible nor proper on my part to even endeavour to decide the exact point of time when the petitioner has been dispossessed of the suit property. The question is, can the plaintiff be denied the right to add such a prayer in the suit ? 3. At the outset, it may be noted that the amendment in order 6 rule 17 of the Code of Civil Procedure was made applicable with effect from 1.7.2002. The suit was instituted in the year 1992. In that view of the matter, the limitation put on the SCA/2524/2007 4/5 JUDGMENT power of the Court to permit amendment cannot be applied in the present case. Insofar as the question of irreparable loss or prejudice to the respondents is concerned, I find that the learned Judge committed a serious error in this regard. The case of the petitioner has been that after filing of the suit and despite interim injunction granted by the competent Court, he was forcibly dispossessed. If the petitioner ultimately succeeds in establishing before the Trial Court, his right would seriously suffer if there is no corresponding prayer for restoration of the possession in the suit. 4. Though apparently there is some delay in filing such an amendment application, the petitioner points out, as noted earlier, that he was pursuing contempt petition. Even otherwise, the Apex Court has observed in number of decisions that amendment can be granted even keeping the question of limitation open. Reference in this regard can be made to the decision reported in 2004 AIR SCW 4522. 5. In the result, the impugned order dated 21.12.2006 is quashed. The petitioner is permitted to amend his plaint as prayed for in Application Ex.117. This shall however be subject to the rights and contentions of the defendants including the question of limitation. With these directions, th petition is disposed of. Rule is made absolute in above terms. (Akil Kureshi, J.) SCA/2524/2007 5/5 JUDGMENT (vjn)