SCA/9961/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9961 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 ========================================================= SANJAYBHAI KARSHANBHAI BHARVADIYA - Petitioner Versus STATE OF GUJARAT & 2 - Respondents ========================================================= Appearance : MR AMAR D MITHANI for Petitioner No. 1. MR VIPUL MISTRY, AGP for Respondents No. 1-2. MR AJ SHASTRI for Respondent No. 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, petitioner–original plaintiff has prayed for an appropriate writ, order SCA/9961/2008 2/8 JUDGMENT or direction, quashing and setting aside the impugned judgment and order dated 20.6.2008 passed by the learned Principal Senior Civil Judge, Porbandar below application Exh.39 in Regular Civil Suit No.425 of 2005 by which the learned trial court has rejected the application submitted by the petitioner to amend the plaint under Order 6 Rule 17 of the Code of Civil Procedure. 2. Petitioner-plaintiff had instituted Regular Civil Suit No.425 of 2005 initially against the respondents No.1 and 2 herein with reference to the grant of an authorisation/licence to run a fair price shop at Taluka Kutiyana under the “Pandit Din Dayal Grahak Bhandar” scheme propounded by the Government. It was contended on behalf of the petitioner- plaintiff that, under the scheme, the educated unemployed persons etc., are to be given preference, and as the petitioner was fulfilling the criteria, he applied for authorisation/licence to run a fair price shop at Village Kutiyana. It was submitted that the respondent NO.3 herein a member of Kutiyana Taluka Panchayat, under his influence and collusion SCA/9961/2008 3/8 JUDGMENT with the Committee Members, meant for allotting the fair price shop was likely to get such authorisation, and the petitioner plaintiff was denied his rightful claim and therefore he instituted the aforesaid suit on 21.6.2005. As per the petitioner-plaintiff till the plaintiff filed the suit on 21.6.2005, no licence was issued so as to allot the authorisation to run a fair price shop at Village Mandva. As per the petitioner, after hearing the learned AGP appearing for the respondents No.1 and 2, the learned trial court vide judgment and order dated 19.7.2005 granted interim relief and it was directed that till the final disposal of the suit, the authoritisation/licence to run a fair price shop under “Pandit Din Dayal Grahak Bhandar” scheme may not be issued for Village Mandva, Taluka Kutiyana. That the order passed below Exh.5 came to be challenged by the respondents No.1 and 2 before the learned appellate court being Civil Misc.Appeal No.13 of 2005, and in the said appeal, the respondent No.3 applied for being joined as party and the said application was granted. The learned appellate court vide judgment and order dated 29.4.2006 allowed SCA/9961/2008 4/8 JUDGMENT the said Civil Misc.Appeal against which Special Civil Application No.10778 of 2006 was preferred. It appears that the respondent No.3 subsequently submitted application Exh.14 before the learned trial court inter-alia praying to be joined as party defendant and the said application was allowed on 28.12.2005. In the said application the respondent No.3 disclosed that he has been issued licence on 30.6.2005 to run a fair price shop at Mandva, Taluka Kutiyana. Considering the above and the subsequent development, the petitioner-plaintiff submitted application Exh.39 permitting him to amend the plaint under Order 6 Rule 17 of the CPC, which came to be dismissed by the learned trial court by holding that if the amendment as prayed for is granted, in that case, the nature of the suit would be changed. 2.1 Being aggrieved and dissatisfied with the order passed below Exh.39 by the learned trial court dismissing the same and not permitting the petitioner plaintiff to amend the plaint, petitioner-plaintiff has preferred present petition under Articles 226/227 of the Constitution of India. SCA/9961/2008 5/8 JUDGMENT 3. Shri Amar D.Mithani, learned advocate appearing on behalf of the petitioner-plaintiff has vehemently submitted that the learned trial court has materially erred in not properly appreciating the fact that the amendment was required to bring on record the subsequent development and the events which brought to the notice of the petitioner-plaintiff after the respondent No.3 submitted the application Exh.14. It is submitted that the learned trial court ought to have appreciated by permitting the petitioner- plaintiff to amend the plaint, neither the cause of action nor the nature of the suit is likely to be changed. It is submitted that the respondent No.3 has got the licence to run a fair price shop in collusion and under the influence, and though he holds agriculture land at Village Mandva itself, he was not fulfilling the criteria, and thereafter to bring the correct facts on record, the amendment application was submitted which is wrongly rejected by the learned trial court. Therefore, it is requested to allow the present Special Civil Application. SCA/9961/2008 6/8 JUDGMENT 4. Shri A.J.Shastri, learned advocate appearing on behalf of the respondent No.3, while opposing the present petition, has submitted that, in the facts and circumstances of the case, the learned trial court has rightly rejected the application submitted by the petitioner-plaintiff to amend the plaint as the cause of action and the nature of the suit would be changed. Therefore, it is requested to dismiss the present Special Civil Application. 5. Shri Vipul Mistry, learned AGP appearing on behalf of the State has requested to pass an appropriate order. 6. Heard the learned advocates appearing for the respective parties. 7. It is required to be noted that Regular Civil Suit No.425 of 2005 was instituted by the petitioner plaintiff making a grievance with respect to non- granting of authoritisation/licence to run a fair price shop under the “Pandit Din Dayal Grahak SCA/9961/2008 7/8 JUDGMENT Bhandar” scheme at Kutiyana, and admittedly, when the suit was instituted on 21.6.2005, no licence was issued in favour of respondent No.3. Subsequently, the respondent No.3 submitted application Exh.14 permitting him to be joined as defendant and it has disclosed that he has already been issued the licence on 30.6.2005. Considering the subsequent developments, it has necessitated the petitioner plaintiff to amend the plaint by bringing on record the subsequent developments and events. Considering the subsequent developments and events and disclosure of licence in favour of respondent No.3, the learned trial court ought to have allowed the amendment application. The learned trial court has erred in holding that when the amendment application is allowed there will be change in the cause of action and the nature of the suit. Considering the controversy in the suit and the relief sought in the plaint, if the petitioner-plaintiff is permitted to amend the plaint as per the amendment application, neither the cause of action nor the nature of the suit will be changed. Under the circumstances, the learned trial court has committed an error in not SCA/9961/2008 8/8 JUDGMENT allowing the application Exh.39 under Order 6 Rule 17 of the CPC, as held by the Hon'ble Supreme Court as well as this Court in catena of decisions normally the amendment application should be allowed. 8. For the reasons stated above, the petition succeeds. The impugned order passed by the learned trial court passed below application Exh.39 in Regular Civil Suit No.425 of 2005 is hereby quashed and set aside and the application Exh.39 submitted by the petitioner-plaintiff to amend the plaint is hereby allowed. 9. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/