SCA/21807/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21807 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= FAKRUNISHA ABDULAMIYAN - Petitioner(s) Versus JINATBANU RAFIAHMEDMIYAN & 10 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1,MR SURESH M SHAH for Petitioner(s) : 1, None for Respondent(s) : 1 - 3. MR AMAR D MITHANI for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 2, 5, 9, RULE SERVED for Respondent(s) : 3.2.1, 3.2.3, 3.2.4,6 - 8. MR HARISH K BAROT for Respondent(s) : 3.2.1, 3.2.2, 3.2.3,3.2.4 UNSERVED-EXPIRED (N) for Respondent(s) : 3.2.2,10 - 11. RULE UNSERVED for Respondent(s) : 4, ========================================================= SCA/21807/2005 2/5 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/05/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner - original plaintiff has challenged the order passed by the learned 4th Additional Senior Civil Judge (S.D.), Junagadh below Ex.35 in Special Civil Suit No.75 of 1999 dtd.29/7/2005, whereby the learned trial court has dismissed the application submitted by the plaintiff to amend the suit as well as the Schedule to the suit. 2. Mr.Mehul Shah, learned advocate appearing on behalf of the petitioner has vehemently submitted that keeping all the questions open inclusive of the limitation, payment of additional court fees etc. the learned trial court ought to have allowed the application Ex.35 by permitting the petitioner - original plaintiff to amend the suit. He has heavily relied upon the decision of the Hon'ble Supreme Court in the case of M/s. Ganesh Trading Co. Vs. SCA/21807/2005 3/5 JUDGMENT Moji Ram, reported in AIR 1978 SC 484 and in the case of Pankaja and another Vs. Yellapa (D) by L.Rs. & Ors., reported in AIR 2004 SC 4102. 3. Mr.Mithani, learned advocate appearing on behalf of the contesting respondents has tried to support the impugned order passed below Ex.35 by submitting that in the facts and circumstances of the case when the learned trial court has rejected the application Ex.35 to amend the suit by adding certain properties in the Schedule, the same is not required to be interfered with in exercise of the powers under Article 227 of the Constitution of India. 4. Heard the learned advocates appearing on behalf of the respective parties. 5. By submitting application Ex.35, the petitioner – original plaintiff requested to permit him to amend the suit by adding certain properties in the Schedule and it is the case on behalf of the petitioner – original plaintiff that by permitting the petitioner – plaintiff to amend the suit by adding certain properties in the Schedule, the question with regard to limitation, additional court fees etc are not SCA/21807/2005 4/5 JUDGMENT likely to arise, as the properties were already described. It is the contention on behalf of the petitioner that by the amendment as sought for, the only left out properties in the Schedule and the necessary amendments were sought to be added as regards the fact of death of defendant No.2 while determining the shares of the concerned parties and the relief as claimed in the suit would remain unchanged. 6. In view of the rival contentions and considering the decisions of the Hon'ble Supreme Court in the case of M/s. Ganesh Trading Co. (supra) and Pankaja and another Vs. Yellapa (D) by L.Rs. & Ors. (supra), the trial court ought to have allowed the application Ex.35 by permitting the petitioner – plaintiff to amend the suit keeping all the questions open with respect to limitation, additional court fees etc. and if such a course would have been adopted, it would have been in the fitness of things. 7. For the reasons stated above, the petition succeeds. The impugned order passed by the learned 4th Additional Senior Civil Judge (S.D.), Junagadh below Ex.35 in Special Civil Suit No.75 of 1999 dtd.29/7/2005 is hereby quashed SCA/21807/2005 5/5 JUDGMENT and application Ex.35 submitted by the petitioner – plaintiff for amendment is hereby allowed subject to and keeping all the questions open inclusive of the limitation, court fees etc. Rule is made absolute to the aforesaid extent. No costs. [M.R. SHAH, J.] rafik