SCA/23183/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23183 of 2006 With SPECIAL CIVIL APPLICATION No. 23184 of 2006 TO SPECIAL CIVIL APPLICATION No. 23186 of 2006 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? ========================================================= DESINGBHAI AMARABHAI RATHWA - Petitioner(s) Versus RATHWA HIMLABHAI RADATIYABHAI & 1 - Respondent(s) ========================================================= Appearance : MR SUNIL S JOSHI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 DELETED for Petitioner(s) : 1.2.5 NOTICE SERVED for Respondent(s) : 1 - 2. MS LAXMI C NAINANI for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/12/2008 ORAL JUDGMENT 1. Rule. Ms. Laxmi Nainani, learned Advocate waives service of rule on behalf of the respondents. SCA/23183/2006 2/6 JUDGMENT With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. In all these petitions, one common order passed by the learned trial Court below Exh.58 in Regular Civil Suit No.70 of 2004 is challenged, therefore, they are being disposed of by this common judgment. 3. By way of these petitions, the respective petitioners – original plaintiffs have prayed for an appropriate Writ, direction and/or order quashing and setting aside the impugned order passed by the learned Civil Judge (JD), Halol below Exh.58 in Regular Civil Suit No.70 of 2004. It appears that the petitioners herein – original plaintiffs have instituted Regular Civil Suit No.70 of 2004 initially in the Court of Civil Judge(JD), Halol (now pending in the Court at Gogamba) for declaration and permanent injunction against the respondents – original defendants. It is the case on behalf of the petitioners that during the pendency of the aforesaid Suit, defendants have encroached upon the disputed land in question and have put up two huts and therefore, they submitted application Exh.58 to permit the plaintiffs to amend the plaint by adding certain averments and the prayer to pass decree directing the defendants to remove encroachment. It was the contention on behalf of the respondents – SCA/23183/2006 3/6 JUDGMENT original defendants that as the construction was already there prior to the filing of the suit and that the plaintiffs were aware of the construction, still they did not pray for prayer to remove encroachment and the said application to amend the plaint has been given belatedly. The learned trial Court accepting the objections submitted by the respondents – original defendants dismissed the application Exh.58 mainly on the ground that such application has been given by the plaintiffs belatedly. Being aggrieved and dissatisfied with the same, the petitioners – original plaintiffs have preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.Sunil Joshi, learned Advocate for the petitioners – original plaintiffs has vehemently submitted that the learned trial Court has materially erred in not permitting the petitioners to amend the plaint mainly on the ground of delay. It is submitted that there was no delay at all. Even if it found that there was delay on the part of the petitioners – original plaintiffs, in that case, the learned trial Court ought to have permitted the petitioners – original plaintiffs to amend the plaint on imposing certain costs. He has relied upon the decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal v/s. K.K.Modi reported in AIR 2006 SC 1647. 5. The petition is opposed by Ms.Laxmi Nainani, learned Advocate for the respondents. It is SCA/23183/2006 4/6 JUDGMENT submitted that the petitioners – plaintiffs were aware and/or in knowledge of the construction and still there was no prayer for getting possession and/or removing encroachment, if any and there was gross delay in submitting the application for amendment, the learned trial Court has rightly dismissed the application Exh.58 by not permitting the petitioners – plaintiffs to amend the plaint and same does not warrant any interference of this Court in exercise of powers under Article 227 of the Constitution of India. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. At the outset, it is required to be noted that it is specific case on behalf of the petitioners – original plaintiffs that defendants have put up construction and have encroached upon the land in question during the pendency of the suit which is not disputed by the defendants. Aforesaid aspects are required to be considered by the learned trial Court at the time of trial on leading appropriate evidence. However, the petitioners – original plaintiffs cannot be restrained from amending the plaint and add the prayer directing the defendants to remove encroachment and hand over the possession. From the impugned order it appears that what is weighed with the learned trial Court is that the application for amendment has been given belatedly. As held by Hon'ble Supreme Court in the case of Rajesh Kumar SCA/23183/2006 5/6 JUDGMENT Aggarwal (supra) the object of rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties. It is observed that rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. It is further observed by the Hon'ble Supreme Court that notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is further held by the Hon'ble Supreme Court that if at all it is found that there was delay in submitting the application for amendment, same can be allowed on imposing certain reasonable costs. Under the circumstances, it appears to the Court that the learned trial Court ought to have allowed application Exh.58 permitting the petitioners – plaintiffs to amend the plaint on imposing certain reasonable costs which according to this Court would be Rs.5000/- (Rupees Five Thousand only). 8. For the reasons stated above, all the petitions succeed. The impugned order passed by the learned Civil Judge (JD), Halol below Exh.58 in Regular Civil Suit No.70 of 2004 is hereby quashed and set aside. Application Exh.58 is hereby allowed on condition that the petitioners shall deposit SCA/23183/2006 6/6 JUDGMENT Rs.5000/- (Rupees Five Thousand only) with the learned trial Court within a period of 3(three) weeks from today and on such deposit, the defendants shall be permitted to withdraw the same. Rule is made absolute accordingly. [M.R.Shah,J.] satish