SCA/16310/2006 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16310 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 ? ========================================= ANILBHAI RAJNIKANT MODI - Petitioner(s) Versus THE STATE OF GUJARAT THRO' THE COLLECTOR & 4 - Respondent(s) ========================================= Appearance : MR AB MUNSHI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 MR. AMIT PATEL ASSIT. GOVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 5. MR SHITAL R PATEL for Respondent(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/12/2008 ORAL JUDGMENT 1. Rule. Shri Amit Patel, learned AGP waives service of notice of Rule on behalf of the respondent No.1 and Shri Shital Patel, learned advocate waives service of notice of Rule on behalf of the respondent No.4. With the consent SCA/16310/2006 2/9 JUDGMENT of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today. 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 14.7.2006 passed by the learned 5th Additional Senior Civil Judge, Sabarkantha at Himatnagar passed below Exh. 127 in Special Civil Suit No. 53 of 2001, by which learned trial Court has dismissed the application submitted by the petitioners permitting them to amend the plaint under Order 6 Rule 17 of the Code of Civil Procedure. 3. The petitioners-plaintiffs had instituted the Special Civil Suit No. 53 of 2001 in the Court of Principal Senior Civil Judge, Himatnagar for declaration and permanent injunction and to quash and set aside the sale deed executed by the defendants No. 2 and 3 in favour of defendant No.4 dated 27.2.2000. It appears that in the said suit plaintiffs submitted application Exh. 6 and the defendant No. 4 submitted application for counter injunction below Exh. 39 and the learned trial Court dismissed the application Exh. 6 submitted by the petitioners-plaintiffs and allowed the application Exh. 39 submitted by the defendant No. 4. It appears that though at the initial stage it was a specific case on behalf of the plaintiffs that they are in possession of the disputed land, however while deciding application Exh. 39, the learned SCA/16310/2006 3/9 JUDGMENT trial Court prima facie found that defendant No. 4 to be in possession and, therefore, the petitioners-plaintiffs submitted the application Exh. 127 under Order 6 Rule 17 of the Code of Civil Procedure permitting them to amend the plaint by adding para 16(A) describing the possession of the defendant No. 4 as unauthorized and without any right title or interest. The petitioners-plaintiffs also further prayed that permitting them to amend the prayer clause by adding para 20 (E) and 20 (E)(1) claiming decree of possession with mense profit. The said application was opposed by the original defendants by submitting that the said application for amendment has been given belatedly and after the issues are framed. It was submitted that if the plaintiffs are permitted to amend the plaint by claiming possession, the same would be time barred and / or barred by limitation and, therefore, it was requested to dismiss the said application. That the learned trial Court by impugned order dated 14.7.2006 dismissed the said application Exh. 127 by not permitting the petitioners-plaintiffs to amend the plaint as prayed for. 4. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court below Exh. 127, the petitioners-plaintiffs have preferred present Special Civil Application under Article 227 of the Constitution of India. 5. Shri Munshi, learned advocate appearing on behalf of the petitioners-plaintiffs has vehemently submitted that the learned trial Court has materially erred in rejecting the application submitted by the petitioners-plaintiffs to SCA/16310/2006 4/9 JUDGMENT amend the plaint, which was due to subsequent prima facie finding by the learned trial Court that the defendant No. 4 is in possession of the disputed land. It is submitted that to avoid further multiplicity of proceedings, the learned trial Court ought to have granted the amendment application. It is also further submitted that the learned trial Court has materially erred in rejecting the amendment application on the ground of delay. It is further submitted that learned trial Court has materially erred in not properly appreciating the evidence and/ or considering the decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and others reported in (2006) 4 SCC, 385. It is further submitted that as held by the Hon'ble Supreme Court in the said decision while considering the question as to whether amendment should be permitted or not the Court is not required to go into the correctness or otherwise of the case pleaded in the amendment. Learned advocate appearing on behalf of the petitioners- plaintiffs has relied upon the following decisions of the Hon'ble Supreme Court as well as this Court. (1) State of A.P. Vs. Pioneer Builders (2006) 12, SCC, 119. (2). Pankaja Vs. Yellappa (2004) 6 SCC, 415. (3). Sampath Kumar Vs. Ayyakannu (2002) 7 SCC, 559. (4). Ganpat Singh Vs. Sher Bahadur Singh, AIR 1978 Allha. 66. (5) Kisan Vs. Sarangdhar, AIR 1983 Bombay 442. SCA/16310/2006 5/9 JUDGMENT (6) Unreported decision of this Court dated 6.2.2008 in Special Civil Application No. 29552 of 2007. By making above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Application. 6. Petition is opposed by Shri Shital Patel, learned advocate appearing on behalf of the respondent No. 4 original defendant. It is submitted that as such the petitioners- plaintiffs were aware of the fact that defendant No. 4 is in possession of the disputed land and/ or that they are not in possession of the disputed land and still the prayer for possession by way of proposed amendment is sought after a period of 4 years, which is rightly rejected by the learned trial Court. It is submitted that looking to the proviso to Order 6 Rule 17 of the Code of Civil Procedure, the learned trial Court is justified in refusing to permit the petitioners-plaintiffs to amend the plaint. It is submitted that if the petitioners-plaintiffs are permitted to amend the plaint as prayed for adding the prayer of possession, the said prayer would be barred by limitation and, therefore, the petitioners-plaintiffs may not be permitted to amend the plaint by adding the prayer of possession, which is otherwise time barred. Shri Shital Patel, learned advocate appearing on behalf of the respondent No.4 has relied upon the decision of the Hon'ble Supreme Court in the case of Rajkumar Gurawara (Dead) Thr. L. Rs. Vs. M/s. S.K. Sarwagi & Co. Pvt/. Ltd & Anr. reported in AIR 2008 SC 2303. By making above submissions and SCA/16310/2006 6/9 JUDGMENT relying upon the above decision, it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that petitioners-plaintiffs had instituted the aforesaid suit for declaration and permanent injunction and for quashing and setting aside the registered sale deed in favour of defendant No.4. In the said suit, the petitioners- plaintiffs submitted application Exh. 5 and it was the specific case on behalf of the petitioners-plaintiffs that they are in possession of the disputed land. In the said suit, the defendant No. 4 submitted application Exh. 39 for counter injunction submitting that he is in possession of the disputed land. On appreciation of evidence the learned trial Court has prima facie found that defendant No. 4 is in possession. In view of the above, prima facie finding petitioners-plaintiffs submitted the application Exh. 127 under Order 6 Rule 17 of the Code of Civil Procedure permitting them to amend the plaint claiming the relief of possession from the defendant No.4. Thus, it appears that the relief of possession proposed to be added is as such consequential relief and the nature of the suit is not likely to be changed. 8.In the case of State of A.P. v. Pioneer Builders, (2006) 12 SCC 119, it was observed by the Apex Court that the power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice and unless serious injustice or irreparable loss is likely to be caused to the other side, the court should adopt liberal approach and not a hyper-technical SCA/16310/2006 7/9 JUDGMENT approach. 8.1 In the case of Pankaja v. Yellappa, (2004) 6 SCC 415, it was observed that the court has discretion to allow amendment even where the relief sought to be added is by amendment is allegedly barred by limitation. It was observed that in a case where the amendment subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. 8.2 In the case of Rajesh Kumar Aggarwal v. K.K.Modi, (2006) 4 SCC 385, the Apex Court observed that amendment of pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. 8.3 In the case of Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, the Apex Court while allowing the amendment to avoid multiplicity of suit, to protect the interest of the defendant provided that the reliefs sought by the plaintiff by the amendment must be deemed to have been made on the date on which the application for amendment was made. 8.4 In the case of Ganpat Singh v. Sher Bahadur Singh, AIR 1978 Allahabad 66, the Allahabad High Court allowed the amendment of the plaint even at the appellate stage where the Trial Court had dismissed the suit for declaration and permanent injunction on the ground that though the plaintiff was the owner, but defendant was in possession of the suit property. 8.5 In the case of Kisan v. Sarangdhar, AIR 1983 Bombay 442, the Bombay High Court in a case where the plaintiff had filed suit seeking declaration of ownership and permanent injunction observed that the relief of injunction is consequential based on the relief of declaration of ownership. Amendment of consequential relief SCA/16310/2006 8/9 JUDGMENT does not change nature of suit. It was further observed that rejection of amendment application seeking to include relief of possession instead of relief of injunction was illegal. 8.6 In the case of Amar Singh Chetri v. Bijay Chandra Modak, AIR 1993 Gauhati 50, the High Court was dealing with a case of amendment of plaint sought by the plaintiff. The plaintiff had filed a suit for declaration and permanent injunction. During the pendency of the proceedings, the defendant trespassed into property. The plaintiff had prayed for conversion of the plaint to one for possession. The High Court found that no prejudice or irreparable injury was likely to be caused to the defendant. It was found that amendment was necessary to adjudicate the real issues between the parties and the amendment was granted. 8.7 In the case of Abdul Hannan Khann v. Chandra Sekhar, AIR 1986 Orissa 236, the Orissa High Court observed that though initially the suit was for permanent injunction, the amendment seeking to include prayer for possession would not change nature of the suit and the amendment was allowed. 9.Considering the above aspect of the matter, it appears that the learned Judge has committed grave error in not allowing the amendment application of the petitioners- plaintiffs. To avoid multiplicity of proceedings and to decide the real issue, the petitioners-plaintiffs ought to have been permitted to amend the plaint. If there was any question of limitation, the same could either have been kept upon or the interest of the defendants could have been safeguarded by providing that the prayer sought to be added shall take effect only from the date of the amendment application. SCA/16310/2006 9/9 JUDGMENT 10.Under the circumstances and for the reasons stated above, petition is allowed. The impugned order dated 14.7.2006 passed by the learned 5th Additional Senior Civil Judge, Sabarkantha at Himatnagar passed below Exh. 127 in Special Civil Suit No. 53 of 2001 is hereby quashed and set aside and the said amendment application Exh. 127 is allowed subject to safeguard that the reliefs sought by the plaintiffs by the amendment shall be deemed to have been made on the date on which the application for amendment was made. Subject to the above directions and observations, rule is made absolute accordingly. In the facts and circumstances of the case, no order as to costs. (M.R.SHAH,J.) kaushik