SCA/434/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 434 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 ========================================================= ARJANBHAI BHAGWANBHAI PATOLIYA - Petitioner(s) Versus LAXMANBHAI KANJIBHAI KIKANI & 2 - Respondent(s) ========================================================= Appearance : MR AMAR D MITHANI for Petitioner(s) : 1, MR LR PATHAN for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 ORAL JUDGMENT 1. Rule. Shri L.R.Pathan, learned advocate waives service of notice of Rule on behalf of respondent No.1-original plaintiff – the main contesting party. SCA/434/2008 2/7 JUDGMENT With the consent of the learned advocates appearing for the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner – original defendant No.3 has prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 7.9.2007 passed by the learned 2nd Additional Civil Judge, Junagadh below application Exh.47 in Regular Civil Suit No.16 of 2002 by which the learned trial court has allowed the application submitted by the respondent No.1 herein – original plaintiff to amend the suit under Order 6 Rule 17 of the Code of Civil Procedure, which was after framing of the issues and the commencing of the trial and which was submitted after the period of five years. 3. Regular Civil Suit No.16 of 2002 came to be filed by the respondent No.1 herein – original plaintiff in the Court of learned Additional Civil Judge, 2nd Court, Junagadh on 19.1.2002. It appears that the written statement came to be filed by the SCA/434/2008 3/7 JUDGMENT petitioner-original defendant No.3 on 11.2.2002. The issues came to be framed by the trial court on 1.5.2004 and that thereafter the matter came to be adjourned for at least 22 times for leading the evidence. After the period of almost five years the plaintiff submitted the application under Order 6 Rule 17 of the CPC to amend the plaint on 14.2.2007 demanding the rent from 1.10.2001 which, according to the petitioner, is the date given prior to the cause of action of the suit i.e. 12.12.2001. By impugned order the learned trial court allowed the application Exh.47 permitting the plaintiff to amend the plaint as per the application Exh.47. 4. Being aggrieved and dissatisfied with the impugned order passed by the learned trial court passed below Exh.47 in Regular Civil Suit No.16 of 2002, the petitioner herein-original defendant No.3 has preferred the present petition under Article 227 of the Constitution of India. 5. Shri Amar D.Mithani, learned advocate appearing on behalf of the petitioner-original defendant No.3 SCA/434/2008 4/7 JUDGMENT has vehemently submitted that the learned trial court has committed an error in allowing the application under Order 6 Rule 17 of the CPC permitting the plaintiff to amend the suit after the period of five years and that too without explaining any delay of five years and in exercise of any due diligence. It is submitted by him that even considering Order 6 Rule 17 of the CPC, once the issues were framed, the trial is commenced, the learned trial court ought not to have allowed the amendment application. 5.1 Shri Amar Mithani, learned advocate appearing on behalf of the petitioner has relied upon the following decisions: (i) Ajendraprasadji Narendraprasadji Pande and Another vs. Swami Keshavprakashdasji Gurupujya Narayanpriyadasji and others reported in 2006(3) GLH 566. (ii) Ajendraprasadji N.Pande and Another vs. Swami Keshavprakashdasji N. and others reported in 2007(3) GLR 1872 (SC). (iii) Baldev Singh and others vs. Manohar and Another reported in (2006) 6 SCC 498. SCA/434/2008 5/7 JUDGMENT 5.2 By making the above submissions and relying upon the aforesaid decisions, the learned advocate appearing on behalf of the petitioner has requested to allow the present Special Civil Application. 6. Petition is opposed by Shri L.R.Pathan, learned advocate appearing on behalf of respondent No.1. It is submitted that in the facts and circumstances of the case when the learned trial court has exercised the discretion by allowing the application Exh.47 permitting the plaintiff to amend the plaint, the same is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Therefore, it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocates appearing on behalf of the respective parties. 8. As stated hereinabove, the suit came to be filed by the plaintiff on 19.1.2002 for the cause of action of 12.12.2001. The petitioner filed the written statement on 11.2.2002 and the issues were SCA/434/2008 6/7 JUDGMENT framed by the trial court on 1.5.2004. That thereafter after period of approximately five years the plaintiff submitted the application to amend the plaint on 14.2.2007. Looking to the application Exh.47 there are no averments at all explaining the delay of five years and any exercise of due diligence by the plaintiff, and it appears that the learned trial court has mechanically allowed the application for amendment. Considering Order 6 Rule 17 of the CPC as amended, after the trial is commenced, application for amendment cannot be allowed unless exceptional case is made out and the delay is sufficiently explained. Considering the above and the decisions of the Hon'ble Supreme Court and this Court referred to hereinabove and relied upon by the learned advocate appearing on behalf of the petitioner herein, it appears that the learned trial court has not properly exercised the jurisdiction and the discretion judiciously. Without there being any explanation of delay of five years application for amendment and without any explanation with due diligence and after issues were framed and the suit was adjourned for at least 22 times for the evidence SCA/434/2008 7/7 JUDGMENT of the plaintiff, the learned trial court ought not to have allowed the application Exh.47 by permitting the plaintiff to amend the plaint. 9. For the reasons stated above, the petition is required to be allowed and is accordingly allowed. The impugned order dated 7.9.2007 passed by the learned 2nd Additional Civil Judge, Junagadh below application Exh.47 in Regular Civil Suit No.16 of 2002 is hereby quashed and set aside. Rule is made absolute accordingly. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/