SCA/10230/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10230 of 2007 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 ? ========================================================= KETAN RAMESHBHAI PATEL & 2 - Petitioner(s) Versus DAYABHAI KESHAVLAL PATEL - Respondent(s) ========================================================= Appearance : MR JIGAR M PATEL for Petitioner(s) : 1, 1.2.1,1.2.2 - 3. MR MIHIR JOSHI, SR.ADVOCATE WITH MR NEHAL R JOSHI for Respondent:1 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/08/2008 ORAL JUDGMENT 1. Heard Mr.Jigar Patel, learned Advocate appearing on behalf of the petitioner – original plaintiffs and Mr.Mihir Joshi, learned Senior SCA/10230/2007 2/5 JUDGMENT Advocate with Mr.Nehal Joshi, learned Advocate for the respondent. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiffs have prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 28.02.2006 passed by the learned 6th Additional Senior Civil Judge and J.M.F.C., Ahmedabad (Rural) below Exh.18 in Regular Civil Suit No.176 of 1999 by which the learned trial Court has dismissed the said application submitted by the petitioner – original plaintiffs submitted under Order VI Rule 17 of the Code of Civil Procedure. In the suit of 1999, the petitioner – original plaintiffs submitted application Exh.18 under Order VI Rule 17 of the C.P.C. directing them to amend the plaint by adding para – (5-a) after Para -5 and para (6-aa) after para-6 praying for additional relief. Said application came to be dismissed by the learned trial Court only on the ground that same is barred by Order II Rule 2 of the C.P.C. Being aggrieved and dissatisfied with the same, the petitioner – SCA/10230/2007 3/5 JUDGMENT plaintiffs have preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Jigar Patel, learned Advocate appearing on behalf of the petitioner – original plaintiffs has heavily relied upon the decision of this Court in the case of Sheth Chimanlal Ambalal v/s. Shah Hasmukhlal @ Hasubhai Keshavlal and Anr. reported in XVII (1976) G.L.R.40 in support of his submission that there shall not be any bar of Order II Rule 2 when the amendment application is submitted in the same suit and same can be applicable when subsequent and another suit is filed. 4. Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respondent while opposing the present Special Civil Application has submitted that even otherwise the application for amendment under Order VI Rule 17 of the C.P.C. was required to be dismissed on the ground that if the amendment is allowed, it will change the nature of the suit more particularly, when no steps were taken by the SCA/10230/2007 4/5 JUDGMENT plaintiffs for quite number of years after submitting application for amendment. 5. Having heard the learned Advocates appearing on behalf of the respective parties and having gone through the impugned order passed by the learned trial Court, it appears that the learned trial Court has dismissed application Exh.18 solely on the ground that it will be barred under Order II Rule 2 of the C.P.C. and other aspects are not considered and dealt with at all. So far as the bar under Order II Rule 2 of the C.P.C. is concerned, dispute is squarely covered by the decision of this Court in the case of Sheth Chimanlal Ambalal (supra) and therefore, the impugned order passed by the learned trial Court rejecting the amendment application on the ground that same will be barred by Order II Rule 2 of the C.P.C. deserves to be quashed and set aside. However, in view of the fact that the learned trial Court has not considered other aspects and solely rejected the application on the aforesaid ground, the matter is to be remanded to the learned trial Court for deciding the application Exh.18 afresh in accordance with law SCA/10230/2007 5/5 JUDGMENT and on merits and in light of the observations made herein above. 6. For the reasons stated above, the petition succeeds. order dated 28.02.2006 passed by the learned Trial Court below Exh.18 in Regular Civil Suit No.176 of 1999, is hereby quashed and set aside. The matter is remanded to the learned trial Court for deciding the application-Exh.18 afresh in accordance with law and on merits and in light of the observations made herein above. Said exercise be done within a period of 3(three) months from the date of receipt of this order or on production of certified copy of this order as the Suit is of 1999. Rule is made absolute accordingly to the aforesaid extent. [M.R.Shah,J.] satish