SCA/8437/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8437 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 ? 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 ? ========================================================= HASMUKHBHAI KASHIRAM PATEL & 7 - Petitioner(s) Versus JAYESHBHAI FARASRAM BHUTTA & 1 - Respondent(s) ========================================================= Appearance : MR MANAN A SHAH for Petitioner(s) : 1 - 8. MR UTPAL M PANCHAL for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/12/2008 ORAL JUDGMENT 1. Rule. Shri Utpal Panchal, learned advocate waives service of notice of rule on behalf of the respondents. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today. SCA/8437/2008 2/6 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioners original plaintiffs have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 15.12.2007 passed by the learned Civil Judge (S.D), Surat below Exh. 27 in Regular Civil Suit No. 2 of 2005, by which the learned trial Court has dismissed the said application submitted by the petitioners- plaintiffs to amend the plaint by adding certain averments and prayer. 3. It appears that the petitioners-plaintiffs had instituted Civil Suit No. 2 of 2005 in the Court of learned Civil Judge (S.D.), Surat for declaration and permanent injunction and at the relevant time he also submitted application Exh. 5 for interim injunction restraining the defendants from interfering with their possession. Learned trial Court dismissed the application Exh. 5. It was the case on behalf of the petitioners-plaintiffs that subsequently taking disadvantage of dismissal of application Exh. 5, the defendants have forcibly taken the possession and, therefore, the petitioners- plaintiffs wanted to add certain averments in the plaint to the aforesaid effect and also to pray for restoration of the possession, which came to be dismissed by the learned trial Court on the ground that in view of dismissal of SCA/8437/2008 3/6 JUDGMENT application Exh. 5, if amendment application is allowed and the petitioners are permitted to amend the plaint the nature of suit will be changed. Being aggrieved and dissatisfied with the order passed by the learned trial Court, the petitioners-plaintiffs have preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shir Manan Shah, learned advocate appearing for the petitioners has vehemently submitted that in the facts and circumstances of the case, when after dismissal of the application Exh. 5 it is alleged that the respondents-defendants have forcibly taken the possession and when the said averments are to be added in the plaint and the prayer for restoration of the possession was sought to be made, the learned trial Court ought to have allowed the said application permitting the petitioners-plaintiffs to amend the plaint. It is submitted by him that by adding certain averments nature of the suit is not likely to be changed. Therefore, it is requested to allow present Special Civil Application. 5. On the other hand, Shri Panchal, learned advocate appearing for the respondents has submitted that even at the time of application Exh. 5 respondents-defendants were in possession of the disputed property, therefore, there is no question of forcibly taking the possession by SCA/8437/2008 4/6 JUDGMENT the defendants as alleged after dismissal of application Exh.5. It is submitted that if the petitioners are permitted to amend the plaint by making averments sought to be added, in that case, it can be considered that the defendants have subsequently forcibly taken the possession after dismissal of application Exh. 5. It is submitted that as rightly observed by the learned trial Court if the petitioners are permitted to amend the plaint by adding the prayer of possession etc., the nature of suit is likely to be changed. Therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the petitioners- plaintiffs wanted to amend the plaint by adding certain averments by contending allegation with respect to forcibly taking over the possession after dismissal of application Exh. 5 and for restoration of the possession on that basis. Considering the above amendment, it cannot be said that the nature of the suit is likely to be changed, if the petitioners-plaintiffs are permitted to amend the plaint and add the prayer. Even, with respect to the mesne profit also it cannot be said that nature of suit is likely to be changed. Now, so far as the apprehension on the part of the defendants that SCA/8437/2008 5/6 JUDGMENT by allowing the petitioners-plaintiffs to amend the plaint and averment in the plaint that respondents-defendants have forcibly taken the possession of the disputed property after dismissal of the application Exh. 5 in that case, it will be construed that the defendants- respondents have taken possession forcibly is concerned, such an apprehension is not well founded. Merely because, the petitioners- plaintiffs are permitted to amend plaint and to add certain averment, it cannot be automatically held against the respondents-defendants that they have taken the possession forcibly after dismissal of application Exh.5. Whether who was in possession at the relevant time is required to be considered at the time of trial on leading appropriate evidence. Still, it is observed that while allowing the present Special Civil Application and permitting the petitioners- plaintiffs to amend the plaint, it may not be construed that the respondents have taken over the possession forcibly. The aforesaid aspect is required to be considered at the time of trial on leading appropriate evidence. 7. For the reasons stated above, petition succeeds. The impugned order passed by the learned trial Court passed below application Exh. 27 in Regular Civil Suit No. 2 of 2005 dated 15.12.2007 is hereby quashed and set aside and application Exh. 27 is hereby allowed and SCA/8437/2008 6/6 JUDGMENT petitioners are permitted to amend the plaint and prayed for possession. Rule is made absolute. There shall be no order as to costs. (M.R.SHAH,J.) kaushik