SCA/30923/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30923 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 ? ========================================= = SHILPABEN SANJAYBHAI JASANI - Petitioner(s) Versus DEVKUNVARBA KATHADBHAI JEBALI-YA @ DEVUBHA DADBHA VALA - Respondent(s) ========================================= = Appearance : MR MEHUL S SHAH for Petitioner(s) : 1, MR SURESH M SHAH for Petitioner(s) : 1, MS MAMTA R VYAS for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/08/2008 ORAL JUDGMENT 1. RULE. Ms. Mamta Vyas, learned advocate waives service of rule on behalf of the respondent-original defendant. SCA/30923/2007 2/5 JUDGMENT 2. With the consent of the learned advocates appearing for the respective parties, the present Special Civil Application is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioner-original plaintiff has prayed for an appropriate writ, order or direction quashing and setting aside the order dated 30/11/2007 passed by the learned 5th Additional Senior Civil Judge, Rajkot below Exh. 71 in Regular Civil Suit No. 397/1999 by which the learned trial Court has dismissed the application submitted by the petitioner-original plaintiff to amend the plaint. 4. It appears that the petitioner-original plaintiff has instituted Regular Civil Suit No. 397/1999 for declaration, permanent injunction and cancellation of the sale deed dated 19/02/1999 in favour of the respondent regarding the suit property by declaring it to be null and void and also for permanent injunction claiming title over the suit land by purchase of it by sale deed dated 10/06/1988. It appears that while passing the order below Exh. 5, the learned trial Court directed both the parties to maintain status-quo till final disposal of the suit. 5. In the written statement, the respondent-original defendant came out with a case that she is in possession of the land in question and on the basis of the same it was necessary for the petitioner-original plaintiff to amend the plaint by praying an additional/alternative prayer of handing over possession to the petitioner-original plaintiff, because if ultimately it is held and found that the respondent-original SCA/30923/2007 3/5 JUDGMENT defendant is in possession of the land in question. Therefore, the petitioner submitted an application, Exh. 71 permitting her to amend the plaint by adding the said prayer praying for a decree for possession in case the respondent-original defendant is found to be in possession. The said application came to be opposed by the respondent-original defendant submitting that the petitioner-original plaintiff should not be permitted to amend the plaint and add the prayer as the nature of the suit will be changed. The learned trial Court by the impugned order dated 30/11/2007 dismissed the said application. 6. Being aggrieved and dissatisfied with the same, the petitioner-original plaintiff has preferred the present Special Civil Application under Article 227 of the Constitution of India. 7. Shri S.M. Shah, learned advocate appearing on behalf of the petitioner-original plaintiff has vehemently submitted that as such by permitting the petitioner-original plaintiff to amend the plaint and add a prayer, the nature of the suit would not be changed and at the most it can be said to be an alternative prayer in view of the averments made in the written statement by the respondent-original defendant. Therefore, it is requested to allow the present Special Civil Application. 8. Ms. Mamta Vyas, learned advocate appearing on behalf of the respondent-original defendant while opposing the present Special Civil Application has submitted that earlier there was no prayer for delivery of possession and now by permitting the petitioner-original plaintiff to amend the plaint and pray for possession, the nature of the suit would be SCA/30923/2007 4/5 JUDGMENT changed and, therefore, the learned trial Court has rightly dismissed the application submitted by the petitioner-original plaintiff. 9. Having heard the learned advocates appearing on behalf of the respective parties and looking to the nature of the suit and the relief sought in the suit and the proposed amendment on the basis of the averment in the written statement to the effect that the possession is with the respondent-original defendant, the petitioner-original plaintiff has prayed for amendment to amend the plaint by adding the prayer with respect to delivery of possession, it cannot be said that the nature of the suit will be changed. The same can be said to be either a further prayer and/or an alternative prayer and, therefore, the learned trial Court has committed an error in dismissing the said application under Order 6 Rule 17 of the Civil Procedure Code. As held by the Hon'ble Supreme Court in catena of decisions, consequential amendment application should be considered liberally. 10. For the reasons stated hereinabove, the petition succeeds. The impugned order passed by the learned trial Court below Exh. 71 in Regular Civil Suit No. 397/199 is hereby quashed and set aside and the application below Exh. 71 submitted by the petitioner for amendment of the plaint is hereby allowed and the applicant is hereby permitted to amend the plaint as per the application, Exh. 71. 11. With this, the present Special Civil Application is disposed of. Rule is made absolute. There shall be no order as to costs. SCA/30923/2007 5/5 JUDGMENT (M.R. SHAH, J.) siji