SCA/18710/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18710 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? ========================================================= SAVITABEN KURJIBHAI PATEL & 1 - Petitioner(s) Versus JINABHAI GOKALBHAI RAIYANI & 3 - Respondent(s) ========================================================= Appearance : MR BD KARIA for Petitioner(s) : 1 - 2. DS AFF.NOT FILED (R) for Respondent(s) : 1, DHARMESH D NANAVATY for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/10/2008 ORAL JUDGMENT 1. Heard Mr.B.D.Karia, learned Advocate for the petitioners and Mr.Dharmesh Nanavaty for the respondents. SCA/18710/2007 2/8 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs have prayed for an appropriate Writ, order to quash and set aside the impugned order dated 12.07.2007 passed by the learned Senior Civil Judge & JMFC, Gondal below application Exh.187 in Regular Civil Suit No.161 of 1993 pending in the Court of learned Civil Judge (SD), Gondal by which the learned trial Court has dismissed the application submitted by the petitioners to amend the plaint by adding prayer to quash and set aside the registered sale deed in favour of defendant Nos.2 to 4. 3. The petitioners – original plaintiffs had instituted Regular Civil Suit No.161 of 1993 in the learned Principal Civil Judge (SD), Gondal against the defendants, husband of petitioner No.1 and others for declaration and permanent injunction declaring that defendant Nos.1 to 4 have no right or authority to transfer, sell and/or alienate the land in question and permanent injunction to that effect was also asked. Necessary averments with respect to sale deed in favour of defendant Nos.2 to 4 were also made SCA/18710/2007 3/8 JUDGMENT in the Suit. Further prayer to quash and set aside the sale deed in favour of defendant Nos.2 to 4 was not sought and therefore, the petitioners submitted application under Order VI Rule 17 of the Civil Procedure Code to amend the plaint by adding prayer only to quash and set aside the sale deed in favour of defendant Nos.2 to 4. Said application came to be dismissed / rejected by the learned trial Court by observing that said application is given after a period of 14 years and that the issues are already framed and matter is at the stage of pronouncement of judgment. Being aggrieved and dissatisfied with the impugned order rejecting the application submitted by the petitioners under Order VI Rule 17, the petitioners have preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.Karia, learned Advocate appearing on behalf of the petitioners has vehemently submitted that amendment can be allowed at any stage for granting effective relief. It is submitted that necessary averments with respect to sale deed in SCA/18710/2007 4/8 JUDGMENT favour of defendant Nos.2 to 4 were already made in the plaint and only prayer was to be added, which is as such would be consequential as the petitioners – plaintiffs have already prayed for relief of declaration and permanent injunction. It is submitted that therefore, nature of suit would not be changed. He has relied upon the decision of the Hon'ble Supreme Court in the case of State Bank of Hyderabad v/s. Town Municipal Council reported in (2007) 1 SCC 765 and another decision of the Hon'ble Supreme Court in the case of Chander Kanta Bansal v/s. Rajinder Singh Anand reported in (2008) 5 SCC 117. It is submitted that as held by the Hon'ble Supreme Court only on the ground of delay application under Order VI Rule 17 cannot be dismissed. It is submitted that as held by the Hon'ble Supreme in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. Therefore, it is requested to allow the present Special Civil Application. 5. Mr.Dharmesh Nanavaty, learned Advocate appearing on behalf of the respondents while opposing SCA/18710/2007 5/8 JUDGMENT the present Special Civil Application has submitted that the application for amendment was submitted belatedly and there was gross delay of 14 years. It is further submitted that inspite of the fact that the plaintiffs were aware of the transactions / sale deed in favour of defendant Nos.2 to 4 and so stated in the plant still there was no relief sought for quashing and setting aside the sale deed and there is negligence on the part of the plaintiffs. It is further submitted that the even evidence is already over and the matter was at the stage of pronouncement of judgement and at that stage the application has been submitted by the plaintiffs to amend the plaint by adding prayer which is rightly rejected by the learned trial Court. Mr.Nanavaty, learned Advocate has relied upon the decision of the Hon'ble Supreme Court in the case of Ajendraprash N.Pande & Anr. V/s. Swami Keshavprakashdasji N. & Ors. reported in 2007 (3) GLR 1872. Making above submission, it is requested to dismiss the present Special Civil Application. 6. Heard the learned Advocates appearing on SCA/18710/2007 6/8 JUDGMENT behalf of the respective parties. 7. At the outset it is required to be noted that the Suit is filed by the petitioners – original plaintiffs for declaration and permanent injunction to the land in question and as such necessary averments are already there in the plaint. Only thing is that specific prayer to quash and set aside the registered sale deed was not made. Therefore, no further evidence is required to be led and it is case of only adding prayer / relief. By allowing the petitioners – plaintiffs to amend the plaint, nature of the Suit is not likely to be changed. It appears that prayer which is sought to be added would be consequential relief only. Under the circumstances, learned trial Court ought to have permitted the petitioners to amend the plaint by adding prayer for which further evidence is not required to be led. By imposing certain condition the learned trial Court ought to have allowed the application for amendment and ought to have permitted the petitioners to amend the plaint by adding the prayer. As held by the Hon'ble Supreme Court in the case of Chander Kanta SCA/18710/2007 7/8 JUDGMENT Bansal (supra), in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. It is further observed that power to amend should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided; that amendments which do not totally alter the character of an action should be granted; while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment. 8. Considering above and observations made herein above to the effect that the nature of the Suit is not likely to be changed and necessary averments are there in the plaint and if the petitioners – plaintiffs are permitted to amend the plaint by adding the prayer to quash and set aside the registered sale deed in favour of defendant Nos.2 to 4, no further evidence is required to be led and said prayer would be consequential prayer / relief, under the circumstances, impugned order passed by the SCA/18710/2007 8/8 JUDGMENT learned trial Court deserves to be quashed and set aside and the petitioners are permitted to amend the plaint by imposing certain reasonable costs. 9. For the reasons stated above, the petition succeeds. Impugned order dated 12.07.2007 passed by the learned Senior Civil Judge & JMFC, Gondal below application Exh.187 in Regular Civil Suit No.161 of 1993 is hereby quashed and set aside. Application Exh.187 in Regular Civil Suit No.161 of 1993 is hereby allowed and the petitioners are permitted to amend the plaint by adding prayer as prayed for on condition that the petitioners shall pay costs to the respondents which is quantified at Rs.2500/- (Rupees Two Thousand Five Hundred only), within a period of 4(four) weeks from today. After the suit is amended, the learned trial Court is directed to pronounce the judgment at the earliest. Rule is made absolute to the aforesaid extent. Direct service is permitted. [M.R.Shah,J.] satish