SCA/12575/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12575 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 ========================================================= BUDHABHAI AMRABHAI VAGHRI - Petitioner(s) Versus JESANGBHAI NATHABHAI VAGHRI & 4 - Respondent(s) ========================================================= Appearance : MR JIGAR G GADHAVI for Petitioner(s) : 1, MR DHAVAL N VAKIL for Respondent(s) : 1 - 4. None for Respondent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/11/2008 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/12575/2008 2/5 JUDGMENT or direction, quashing and setting aside the impugned order passed by the learned Principal Civil Judge, Petlad dated 21.8.2008 passed below Exh.209 in Regular Civil Suit No.113 of 1990 by which the learned trial court has dismissed the application submitted by the petitioner-original plaintiff to amend the suit by adding certain paragraphs and the prayer clause. 2. It appears from the impugned order that while considering the application for amendment under Order 6 Rule 17 of the Code of Civil Procedure, the learned trial court has gone into the merits of the case and has given a finding that there is no way at all and therefore there is no question of obstruction by the plaintiff and therefore the amendment is not required. As held by the Hon'ble Supreme Court and this Court in catena of decisions, while considering the application for amendment under Order 6 Rule 17 of the CPC, the Court is not required to go into the merits of the case whether the plaintiff is likely to succeed or not. Whether the plaintiff is likely to succeed or not is required to be considered on SCA/12575/2008 3/5 JUDGMENT leading appropriate evidence and therefore the impugned order passed by the trial court deserves to be quashed and set aside. 3. Shri D.N.Vakil, learned advocate appearing on behalf of the respondents has submitted that the application for amendment has been submitted belatedly and only with a view to delay the trial such an application is submitted. It is required to be noted that only on the ground of delay the amendment cannot be refused. It is also required to be noted that the impugned order is not passed by the trial court on the aforesaid ground. The impugned order has been passed by the trial court and the application for amendment is dismissed by the trial court entering upon the merits of the case which is not permissible. Under the circumstances, without further expressing any opinion in favour of either parties, the impugned order deserves to be quashed and set aside and the application for amendment deserves to be allowed. However, considering the fact that the suit is very old, appropriate direction also required to be issued directing the trial court SCA/12575/2008 4/5 JUDGMENT to decide and dispose of the suit at the earliest. 4. For the reasons stated above, the petition succeeds. The impugned order dated 21.8.2008 passed by the learned Principal Civil Judge, Petlad passed below Exh.209 in Regular Civil Suit No.113 of 1990 is hereby quashed and set aside and the application Exh.209 is hereby allowed. In the facts and circumstances of the case, the trial court is directed to decide and dispose of the suit at the earliest but not later than 31st March, 2010, subject to co-operation by all concerned. The parties are directed to complete the pleadings within three months from today. All concerned are directed to cooperate the trial court in early disposal of the suit and within the stipulated time as stated above. The learned Principal District Judge, Anand, is directed to see that the aforesaid direction be complied with by the learned Principal Civil Judge, Petlad and the suit be decided with the stipulated time as stated above. Registry is directed to send writ of this SCA/12575/2008 5/5 JUDGMENT order to the learned Principal District Judge, Anand immediately. Rule is made absolute 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/