SCA/12180/2006 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12180 of 2006 With SPECIAL CIVIL APPLICATION No. 12182 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SHANTA SIZEWELL PVT. LTD. - Petitioner(s) Versus JAYVADANBHAI LALLUBHAI ROTLIWALA & 3 - Respondent(s) ========================================================= Appearance : MR SP MAJMUDAR for Petitioner(s) : 1,MR PP MAJMUDAR for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 3. MR DHIRENDRA MEHTA for Respondent(s) : 1 - 3. MR RR MARSHALL for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 21/02/2008 ORAL JUDGMENT 1. Rule. Learned Advocate Mr.Mehta waives for respondent nos.1 to 3 and Mr.Marshall waives for SCA/12180/2006 2/4 JUDGMENT respondent no.4. 2. The petitions have been filed by the original plaintiff challenging two separate orders both dated 10.3.2006 passed by learned Additional Senior Civil Judge, Surat in Special Civil Suit Nos.19 of 2005 and 18 of 2005. The suits were filed by the petitioner against present respondent nos. 1 to 3 claiming recovery of a sum allegedly due. In the plaint, the petitioner had also prayed that the defendants be prevented from transferring, alienating or in any manner creating charge over their immovable properties. It is the case of the petitioner and about which there is no dispute that respondent no.4 purchased certain immovable properties by way of registered sale deed from respondent nos.1 to 3 during pendency of the suit. The petitioner, therefore, moved amendment application seeking to add certain averments in pending suit as well as seeking to join respondent no.4 as co-defendant. It is the case of the petitioner that respondent nos.1 to 3 fraudulently and with mala fide intention disposed of the properties so that decree, if ultimately passed in favour of the petitioner, cannot be executed. It is not necessary for me to go into validity of this contention. However, it was on this premise that the petitioner wanted to add certain averments and allegations in the suit with corresponding prayer and also wanted to add respondent no.4 as co-defendant. 3. Learned Judge, by the impugned order, SCA/12180/2006 3/4 JUDGMENT rejected the application. The petitioner is, therefore, before this Court in this petition. 4. Having heard learned advocates appearing for the parties, I find that learned Judge omitted to observe that second prayer of the petitioner – original plaintiff in his plaint was regarding immovable properties of the original defendants. 5. Even otherwise, I find that amendment as prayed for should have been granted. It is by now well settled that amendments of pleadings are to be granted liberally. Particularly, in the present case where I find that nature of the suit does not get materially altered, the amendment as prayed ought to have been granted. Only on this ground, impugned orders are quashed. Amendment application Exh.43 in Special Civil Suit Nos.18 of 2005 and application Exh.46 in Special Civil Suit No.19 of 2005 are granted. 6. Learned advocate Mr.Marshall for respondent no.4, however, is justified in pointing out that interim order dated 19.12.2006 passed by this Court preventing respondent no.4 from selling the property in question without permission of the Court cannot be continued. As of now, by this order passed today, all that has been done is to permit the petitioner to amend the suit and to join respondent no.4 herein as defendant in the suit. Question of granting or refusing interim injunction has to be decided by the SCA/12180/2006 4/4 JUDGMENT trial Court. The interim order passed by this Court, therefore, cannot be continued. The same is vacated. 7. In the result, petitions are disposed of in the above terms. Rule is made absolute. Needless to say that anything stated in the order shall not prejudice any party of any right, title or interest in pending civil suits. ( AKIL KURESHI, J ) pathan