SCA/23267/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23267 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? ========================================================= KESHOD MUNICIPALITY - Petitioner(s) Versus PATEL CHHAGANBHAI MANAJIBHAI DHADUK & 1 - Respondent(s) ========================================================= Appearance : MR DEEPAK P SANCHELA for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR VIMAL M PATEL for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 10/12/2008 ORAL JUDGMENT 1. Rule. Mr.Vimal Patel, learned Advocate waives service of rule on behalf of the respondents. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. SCA/23267/2006 2/5 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant has prayed for an appropriate writ, direction and or order quashing and setting aside the impugned order dated 21.09.2006 passed by the learned Civil Judge (S.D.), Junagadh passed below Exh.22 in Special Civil Suit No.88 of 1999 by which the learned trial Court has dismissed the application submitted by the petitioner permitting them to amend the written statement. 3. Mr.Trivedi, learned Advocate for the petitioner – original defendant has submitted that in the facts and circumstances of the case, the learned trial Court has committed an error in not permitting the petitioner – original defendant to amend the written statement which was actually to bring on record subsequent factual development and to bring on record additional facts. It is submitted that the learned trial Court has dismissed the said application mainly on the ground of delay by observing that it is not borne out that when written statement was filed, the petitioner – original defendant was not in knowledge of facts which was sought to be added in the written statement. It is also submitted by Mr.Trivedi, learned Advocate for the petitioner that even on imposing certain costs, the learned trial Court ought to have permitted the petitioner to amend the written statement. He has relied upon decision of the Hon'ble Supreme Court in the case of B.K.Narayan Pillai v/s. Parameshwaran SCA/23267/2006 3/5 JUDGMENT Pillai reported in (2000) 1 SCC 712 and in the case of Rajesh Kumar Aggarwal & Ors. V/s. K.K.Modi reported in AIR 2006 SC 1647. The Hon'ble Supreme Court in the case of B.K.Narayan Pillai(supra) in para – 3 has observed as under: '3. The purpose and object of Order 6 Rule 17, CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.' Similarly in the case of Rajesh Kumar Aggarwal(supra), the Hon'ble Supreme Court in para 16 has observed as under: '16. The object of the 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 provided it does not cause injustice or prejudice to the other side.' 4. Mr.Vimal Patel, learned Advocate for the SCA/23267/2006 4/5 JUDGMENT respondents while opposing the present petition and supporting impugned order passed by the learned trial Court has submitted that considering the decision of the Hon'ble Supreme Court in the case Ajendraprasadji N.Pande v/s. Swami KeshavPrakashdasji & Ors. reported in 2007 (3) GLR 1872 and considering the fact that at the relevant time examination-in-chief of plaintiff was over and it was at the stage of cross-examination of the plaintiff, it cannot be said that the learned trial Court has committed any error in dismissing the said application more particularly when by way of amendment the petitioner wants to add ground of filing earlier suit and is barred by Order II Rule 2 of the Code of Civil Procedure. Therefore, it is requested to dismiss present Special Civil application. 5. Heard the learned Advocates appearing on behalf of the respective parties. 6. At the outset it is required to be noted that at the relevant time when the application was submitted by the petitioner to amend the written statement it was at the stage of cross-examination of the plaintiffs which had not began. The application has been rejected by the learned trial Court mainly on the ground of delay and by observing that it is not borne out from the record that the petitioner was not in knowledge of facts which are sought to be added by way of amendment. As held by the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal SCA/23267/2006 5/5 JUDGMENT (supra), amendment in the plaint and/or in the written statement normally should be permitted and even on the ground of delay, same cannot be refused. As observed by the Hon'ble Supreme Court if it is found that there was some delay, on imposing cost, same can be allowed as the endeavour of the Court should be to avoid technicality and to do substantial justice. Under the circumstances, it appears to the Court that on imposing certain costs, if the petitioner-original defendant is permitted to amend the written statement, it will meet the ends of justice. 7. For the reasons stated above, the petition succeeds. Impugned order dated 21.09.2006 passed by the learned Civil Judge (S.D.), Junagadh passed below Exh.22 in Special Civil Suit No.88 of 1999 is hereby quashed and set aside. The petitioner is permitted to amend written statement as sought on condition to pay Rs.2500/- (Rupees Two Thousand and Five Hundred only) towards costs to the original plaintiffs. Such a cost to be paid within a period of 4(four) weeks from today. Immediately thereafter, the petitioner- defendant to carry out the amendment in the plaint and thereafter the learned trial Court to proceed further with the Suit and decide and dispose of the Suit expeditiously as the suit is of 1999. Rule is made absolute accordingly. [M.R.Shah,J.] satish