SCA/14516/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14516 of 2006 With SPECIAL CIVIL APPLICATION No. 6574 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PARSHOTTAM JETHBHAI PATEL & 2 - Petitioners Versus DANABHAI KOYABHAI PATEL & 1 - Respondents ========================================================= Appearance : MR MR YM THAKKAR for Petitioners. MR MEHUL S SHAH for Respondent - 1 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/08/2008 ORAL JUDGMENT SCA/14516/2006 2/8 JUDGMENT 1. As both these petitions arise out of the common proceedings being Regular Civil Suit No.40 of 2002 pending in the Court of learned Principal Senior Civil Judge, Santrampur, District Dahod, they are being disposed of by this common judgment and order. 2. RULE. Shri Mehul S.Shah, learned advocate waives service of notice of Rule on behalf of respondent No.1-original plaintiff in each of the petitions. With the consent of learned advocates appearing for the respective parties, both the petitions are taken up for final hearing today. 3. By way of Special Civil Application No.14516 of 2006 under Article 227 of the Constitution of India, petitioners – original defendants No.2 to 4 have prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 3.7.2006 passed below Exh.286 in Regular Civil Suit No.40 of 2002 passed by the learned Principal Senior Civil SCA/14516/2006 3/8 JUDGMENT Judge, Santrampur, rejecting the application submitted by the petitioners under Order 6 Rule 17 of the Code of Civil Procedure, by permitting them to amend the written statement by adding paragraphs 8-A and 8-B in the written statement. 3.1 Special Civil Application No.6574 of 2008 is also filed by the petitioners – original defendants No.3/1 to 3/3 under Article 227 of the Constitution of India, for an appropriate writ, order or direction, quashing and setting aside the order dated 15.4.2008 passed by the learned Principal Senior Civil Judge, Santrampur below application Exh.330 in Regular Civil Suit No.40 of 2002 by which the learned trial court has dismissed the said application rejecting the prayer of the petitioners to frame additional issues. The said application was submitted under Order 22 Rule 3 of the CPC. 4. It appears from the proceedings that, after institution of the suit, proceedings came to be initiated by the appropriate SCA/14516/2006 4/8 JUDGMENT authority under the provisions of Bombay Prevention of Fragmentation & Consolidations of Holdings Act, 1947 (hereinafter referred to as “the Act”) and some orders came to be passed and therefore the petitioners-original defendants No.2 to 4 submitted application below Exh.286 permitting them to amend the written statement by adding paragraph 8-A and 8-B after paragraph 8 in the written statement. 5. Shri Mehul Shah, learned advocate appearing on behalf of the original plaintiffs has submitted that, as such, against the order passed by the Deputy Collector, Lunawada, dated 10.2.2006 passed in Fragmentation Case No.3 of 2005, appeal/revision application is preferred before the Collector, Panchmahals, and therefore, it cannot be said that there is a finality to the proceedings under the Act. 6. Considering the above, the petitioners cannot be permitted to add paragraph 8-B in the written statement as SCA/14516/2006 5/8 JUDGMENT prayed for. However, considering the subsequent development, the petitioners can certainly be permitted to amend the written statement by adding the paragraph 8-A. Under the circumstances, to that extent, the application Exh.286 can be allowed by permitting the petitioners to amend the written statement by adding paragraph 8-A in the written statement. Accordingly, Special Civil Application No.14516 of 2006 deserves to be allowed to the aforesaid extent by permitting the petitioners to amend the written statement by adding paragraph 8-A in the written statement at this stage. Accordingly, the impugned order passed by the trial court dated 3.7.2006 passed below Exh.286 is hereby modified to the aforesaid extent by allowing the application Exh.286 partly by permitting the petitioners-original defendants No.2 to 4 to amend the written statement by adding the paragraph 8-A only at this stage. Rule is made absolute accordingly so far as Special Civil Application No.14516 of 2006 is concerned. SCA/14516/2006 6/8 JUDGMENT 7. Now so far as Special Civil application No.6574 of 2008 challenging the order passed below Exh.330 dated 15.4.2008 is concerned, it appears that the said application Exh.330 was submitted by the petitioners-original defendants No.3/1 to 3/3 to add the issue that “whether the defendants No.3/1 to 3/3 can prove that the sale transaction with respect to the suit land in favour of original plaintiffs is declared illegal by the competent authority ?” 8. It appears that the aforesaid request was made on the basis of the order passed by the Deputy Collector, Lunawada, dated 10.2.2006 passed in Fragmentation Case No.3 of 2005 declaring the sale transaction in favour of the plaintiffs as null and void and illegal. Now in view of allowing the application Exh.286 in part by permitting the original defendants No.2 to 4 to amend the written statement by adding the paragraph 8-A, the aforesaid issue is required to be added. However, Shri Mehul Shah, learned advocate appearing on behalf of the original plaintiffs SCA/14516/2006 7/8 JUDGMENT has submitted that the order passed by the Deputy Collector, Lunawada is under challenge by the plaintiffs before the Collector, Panchmahals. If that be so, it will always be open for the plaintiffs to submit that the proceedings under the Act has not attained the finality and it will be ultimately for the defendants No.3/1 to 3/3 to prove and establish on leading proper evidence that the sale in favour of the plaintiffs is declared illegal and/or null and void, and the learned trial court is directed to decide the said issue on considering proper evidence. However, by adding the aforesaid issue, no prejudice will be caused to the original plaintiffs. Under the circumstances, the application Exh.330 deserves to be allowed and is accordingly allowed and the impugned order passed by the learned trial court dated 15.4.2008 passed below Exh.330 is quashed and set aside. 9. For the reasons stated above, Special Civil Application No.14516 of 2006 is allowed in part and Special Civil SCA/14516/2006 8/8 JUDGMENT Application No.6574 of 2008 is allowed in toto. Rule is made absolute accordingly in each of the applications. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/