SCA/5758/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5758 of 2008 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 ? ========================================================= M/S JASWANT IRON & TEXTILE WORKS & 1 - Petitioner(s) Versus ACHYUT CHINUBHAI & 4 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1 - 2.MR SURESH M SHAH for Petitioner(s) : 1 - 2. RULE SERVED for Respondent(s) : 1 - 2, 2.2.2, 2.2.3, 2.2.4,4 - 5. None for Respondent(s) : 2, SERVED BY AFFIX.-(R) for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 24/09/2008 ORAL JUDGMENT 1. Heard learned advocate Shri Mehul S.Shah for the petitioners. Though served, no one appears for the SCA/5758/2008 2/4 JUDGMENT respondents. 2. In the present petition, the petitioners who are defendants in Rent Suit No.75 of 2005 pending before Small Causes Court, Ahmedabad have challenged an order dated 20th November, 2007 by which the learned Judge was pleased to allow application Exh.108 filed by the respondents-original plaintiffs. 3. In the said application, the plaintiffs wanted to make some amendments in their suit. The suit was filed initially for a prayer of seeking injunction against the defendants preventing the defendants from subletting the property in question or in any other manner transferring or assigning the same to anyone. 3.1 It appears that written statement and additional written statement were filed by the petitioners upon which issues were also framed. Sometime, thereafter, the plaintiff filed application Exh.108 seeking amendment in the plaint. By way of amendment, certain averments and corresponding prayer for eviction of the suit premises from the possession of the defendants were sought to be added. The case of the plaintiffs put forth in the said amendment application was that since the defendants have denied the title of the landlord-plaintiffs, the plaintiffs are entitled to eviction decree. Accordingly, amendment was sought in the pending rent suit. It is this application which came to be granted by the learned Judge by his impugned order observing inter-alia that though the SCA/5758/2008 3/4 JUDGMENT nature of the suit would change, bearing in mind the legislative intent contained in Section 116 of the Indian Evidence Act, permission to amend the suit should be granted. 4. Learned advocate Shri Shah for the petitioners submitted that the entire nature of the suit would change if the amendment as prayed for is granted. Initially the suit was instituted seeking injunction, now the prayer of eviction is also sought to be added. He also submitted that in view of the amendments in Order 6 Rule 17 of the Civil Procedure Code, it was the duty of the plaintiff to point out the reason which prevented him from seeking such amendment earlier once the trial had already commenced. He submitted that when the amendment was sought, part of the evidence was already recorded. 5. Keeping the question whether under the factual circumstances arising in the present proceedings, amendment of plaint in the form of addition of averments and corresponding prayer for eviction can be granted or not, I find that even otherwise the plaintiffs had not explained why such amendment could not be sought earlier despite due diligence. Undisputably, the trial had commenced, not only issues were framed but even recording of evidence had started. It was, therefore, required on part of the plaintiffs to explain as per the provisions contained in Order 6 Rule 17, as amended by amending Act 22 of 2002, that the amendment could not be sought before commencement of the trial despite due SCA/5758/2008 4/4 JUDGMENT diligence on part of the plaintiffs. No such attempt was made and no conclusion was rendered by the learned Judge. The order granting such amendment, therefore, cannot be sustained. Petition is, therefore, allowed. Impugned order dated 20.11.2007 is set aside. 6. Petition is disposed of. Rule is made absolute accordingly. (AKIL KURESHI, J.) ashish//