NEUTRAL CITATION
C/SCA/8714/2021 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8714 of 2021
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TERSINGBHAI MADIYABHAI VAHUNIYA
Versus
BIJIYABHAI THAVARABHAI VAHUNIYA
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Appearance:
MR BJ TRIVEDI(921) for the Petitioners
MR. MR BUKHARI(6919) for the Respondent(s) No. 1,10,2,3,4,6,7,8,9
SERVED BY RPAD (N) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/09/2023
ORAL ORDER
Rule. Learned advocate Mr. MR Bukhari waives service of rule for respondent Nos.1 to 4 and 6 to 10.
1. By way of this petition under Article 227 of the Constitution of India, the petitioners pray to quash and set aside the order dated 26.2.2021 passed by the learned Addl. Civil Judge, Jhalod below application for amendment at Exh.84 filed in Regular Civil Suit No.51 of 2007.
2. The petitioners are the plaintiffs and the respondents are the defendants in the aforestated Regular Civil Suit and they are referred herein as per their original status before the learned trial Court.
3. Few facts are necessary to decide this petition. The plaintiffs filed Regular Civil Suit No.51 of 2007 before the Court of learned Civil Judge, Jhalod for the relief of declaration, injunction and removal of encroachment against the defendants.
Page 1 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined An application was moved at Exh.5 under Order 39 Rule 1 and 2 r/w section 151 of the CPC. The learned trial Court granted relief prayed in Exh.5 application in favour of the plaintiffs. During the course of proceedings of the suit, by order passed below Exh.34 dated 23.7.2018, the Court Commissioner came to be appointed. The DILR, in capacity of the Court Commissioner, measured the disputed land and found that some of the portion of the land has been encroached by the defendants. In view of the above findings of the DILR, the plaintiffs moved an application at Exh.73 inter alia seeking amendment in the pleadings for amending and inserting relief clause 5(A) for recovery of the possession of the land which has been measured as encroached by the defendants. The application did not find favour of the plaintiffs and hence, was rejected on 7.12.2019. The plaintiffs challenged said order by way of filing Special Civil Application No.5137 of 2020 before this Court.
4. On 2.3.2020, this Court has passed following order in Special Civil Application No.5137 of 2020:-
"Mr. Trivedi, learned advocate appearing on behalf of the petitioners seeks permission to withdraw the present petition with a liberty to file a fresh application before the learned trial Court.
Permission, as prayed for, is granted. The present petition stands disposed of as withdrawn, with the above liberty.
If the petitioners file such application within a period of 15 days before the learned trial Court, the learned trial Court shall decide the same on its own merit without treating the aforesaid application as res judicata. Direct service is permitted."Page 2 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023
NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined
5. Pursuant to the order passed by this Court, an application for amendment was filed vide Exh.84 to amend and insert para 2(A) in the pleadings and to amend and insert para 5(A) as relief clause. The learned trial Court passed the impugned order on 26.2.2021 and dismissed the application Exh.84. That order has been assailed in this petition.
6. What weighed with the learned trial Court to dismiss the amendment application is that the plaintiffs have filed the amendment application after 13 years of filing of the suit and five years after commencement of the trial with further finding that in the plaint, the plaintiffs have admitted the possession of the defendants since their forefathers and also asked the alternative relief. It is further finding of the learned trial court that allowing the amendment in the pleadings would change the nature of the suit and which may cause prejudice to the defendants. Therefore, the learned trial court has turned down application Exh.84 with the cost of Rs.1000/- to be paid to the defendants.
7. Heard learned advocate Mr BJ Trivedi for the plaintiffs and learned advocate. Mr. MR Bukhari for the defendants.
8. It is sought to be submitted by learned advocate Mr Trivedi that the amendment asked by the plaintiffs was pursuant to the measurement taken by DILR as a court commissioner. The report of the DILR indicates that defendants have encroached the land of the plaintiffs and therefore, the plaintiffs have filed the amendment application. He would further submit that the Page 3 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined learned trial court has taken totally hyper technical approach. the plaintiffs by way of amendment were not intending to bring a different case, but were intending to cover up the subsequent event, took place during the pendency of the suit. He would further submit that the approach of the learned trial court, being pedantic, has caused immense prejudice to the plaintiffs. He would further submit that the learned Court below was required to see that multiplicity of the proceeding is avoided and the party can get their grievance redressed in the same litigation. Placing reliance upon the judgment of the Hon'ble Apex Court in case of LIC of India Vs. Sanjeev Builders Private Limited and another reported in AIR 2022 SC 4256, he would submit that the learned trial court has erred in rejecting the amendment application, more particularly when this court has allowed the plaintiffs to file separate and elaborate application. Upon such submission, he submits to allow this petition.
9. Per contra, learned advocate Mr. Bukhari appearing for the defendants, referring to the judgment of the Hon'ble Apex Court in case of Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and others reported in 2013(2) GLH 201, would submit that it was a clear afterthought on the part of the plaintiffs to amend the plaint after passing of 13 years of its institution and after five years of the trial begins. He would further submit that the plaintiffs were knowing that some part of the disputed land is in hand of the defendants. Even from the date of the filing of the civil suit, did ask the relief to recover the said possession after 13 years that obviously is an oblique purpose to avert inevitable consequences and therefore he submits that the amendment may be disallowed and which is Page 4 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined rightly done by the learned trial court. He would further submit that no error much less error of understanding of law is crept and therefore he submits to reject the petition.
10. Regard being held to the rival submissions of learned advocate for both the sides, at the outset, let refer the concluding observation and finding of the Hon'ble Apex Court in case of LIC (supra) in para 70, which reads as under:-
"70. Our final conclusions up thus: s may be summed
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far o grant beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of proper Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed.
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, tion to provided
(a) the amendment does not result plain- in injustice to the other side.
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless Page 5 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment other must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts ally which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought be be- fore commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result Page 6 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed."
11. If the amendment is necessary to determine the real dispute in controversy and it does not cause injustice or prejudice to either party, such amendment is to be allowed as the legislature has use term "shall" in Order 6 rule Rule 17 of the CPC. What more important is that if the proposed amendment is required for effective and proper adjudication of the controversy, then it is to be allowed so as to avoid multiplicity of the proceedings and does not cause any injustice to other side.
12. Delay in applying for amendment, should not be alone ground to reject such amendment. If issue of delay has arguable point, it can be dealt with by framing separate issue. The amendment sought if ally to the facts already pleaded, then ordinarily such amendment is to be allowed.
13. In background of above legal aspects, if we go through the proposed amendment sought by the plaintiffs, the plaintiffs intended to amend the prayer clause by inserting prayer 5(A). Prayer 5(A), which the plaintiffs or proposed to amend in the suit, reads following:-
"5(A) The land at Survey No.54, Mauje Sarmariya Taluka Zalod, came to be measured by the Surveyor of D.I.L.R. on 09/12/2018, which is produced before the Hon'ble Court at Mark 65/3 on 20/12/2018. Further, the Hon'ble Court may be pleased to order handing over Page 7 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined of open and peaceful possession of the land, marked as 'B' on the map, at Mark 65/3, of suit property at Revenue Survey No.54, having area of 00-06-84 Hectr - Aar, marked as 'C' and measured at 00-51-11 Hectr - Aar, marked as 'F' and measured at 00-11-20 Hectr - Aar and the land marked as 'J' on the map of suit property and measured at 00-19-51 Hectr - Aar, consequent to clearing encroachments, to the plaintiffs. Further, the Hon'ble Court may be pleased to grant 'mesne profit', i.e. profit earned out of wrongful possession, in favor of the Plaintiffs for the period of encroachment by the Respondents."
14. At earlier point of time, when application was moved to amend this prayer clause, it was rejected. The order was carried to challenge before this court. This court permitted the plaintiffs to file a fresh application before the learned trial court. Consequent thereto, the plaintiffs filed application Exh.84 seeking amendment in pleadings as well. The proposed amendment in the pleadings was in terms of Para 2(A), which reads as under:-
"2(A) When the suit was being taken up for hearing, as the attempts to encroach on the land of the plaintiffs continued, a stay came to be granted in favor of the plaintiffs. As the injunction was already issued, we the plaintiffs gave an application (Exhibit 37) with regard to violation of the stay in the present matter. Thereafter, an Application for Court Commission, in accordance with Order XXVI, Rule 11 and Section 75 of the Civil Procedure Code, for getting the land measured through D.I.L.R. Dahod, was preferred. Consequent to the summary-order dated 23/07/2018 being passed underneath the application, the plaintiffs have deposited the fees of Rs.5000/- as per the order. Thereafter, a notice dated 01/12/2018, informing that the land measurement was to be conducted at 10:30 hours in the morning on 09/12/2018 by the Court Page 8 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined Commissioner and LAQ Surveyor, Dahod, was served to all the parties in the present case. The land-measuring was conducted on 09/12/2018, in accordance with the notice and a detailed map was drawn and the same was produced before the Hon'ble Court, which was assigned Mark 65/3 on 20/12/2018. Perusing the map, it emerged on record that, the land parcels marked with 'B', 'C', 'D', 'F', 'G', 'I' and 'J' are under possession of the Respondents. Therefore, it appears that, the land of the plaintiffs has been encroach upon during the pendency of the suit. Therefore, if the suit is decided in favor of the plaintiffs, the Hon'ble Court may be pleased to decree the Plaintiffs to recover 'mesne profit', i.e. profit earned out of wrongful possession, from the Respondents for a period from when the encroachment is established to when the unoccupied and direct possession is handed over to the plaintiff. Further, a decision with regard to violation of stay be taken and possession of the land marked as 'B' on the map, at Mark 65/3, of suit property at Revenue Survey No.54, having area of 00-06-84 Hectr - Aar, marked as 'C' and measured at 00-51-11 Hectr - Aar, marked as 'F' and measured at 00-11-20 Hectr - Aar and the land marked as 'J' on the map of suit property and measured at 00- 19-51 Hectr - Aar, consequent to clearing encroachments, be handed over to the plaintiffs."
15. It appears that the plaintiffs by way of above amendment intended to cover up the subsequent event taken place during the pendency of the suit, as the DILR upon order of the court, acting as a court commissioner, measured the disputed land and reported that certain portion is encroached by the defendants. The plaintiffs mainly intended to recover the said encroachment from the defendants and as such have filed the amendment application. The amendment appears to ally with fact of the suit.
16. On perusal of the plaint, the plaintiffs have prayed that Page 9 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined they are holding independent possession of the land of survey number 54 admeasuring 4-85-00 of village Sarmariya. Alternative relief asked by the plaintiffs was that if it is proved that the defendants have encroached upon the disputed land on the eastern side, then necessary compensation may be granted. The third relief is that the court may grant any justifiable and allowable relief.
17. Now by amendment, the plaintiffs intended to recover the possession of the disputed land said to have been encroached upon by the defendants and also asking for the relief of mesne profit. The amendment in the pleadings is sought after the measurement carried out by DILR and according to the report of the DILR, some portion of the land has been encroached upon by the defendants.
18. What appears that the plaintiffs were intending to amend the plaint to incorporate the relief seeking recovery of the specific portion of the land alleged to have been encroached upon by the defendants. This relief is in line of the cause of action of the plaint. The amendment in the pleadings is prelude and explaining the facts of the background upon which the relief is sought to be amended. Thus, the incorporation of the said pleadings is necessary so the amendment in the relief. This alleged encroachment came on record during the pendency of the suit as a subsequent event and in order to avoid multiplicity of the proceedings, and to do effective justice between the parties, it is necessary to permit the plaintiffs to amend the subsequent event. By no means, permitting the amendment as sought by the plaintiffs would change the cause of action of the Page 10 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023 NEUTRAL CITATION C/SCA/8714/2021 ORDER DATED: 13/09/2023 undefined plaint or would change the nature of the suit or would be prejudicial to any right accrued of the defendants. The learned trial court has clearly fallen in error by rejecting the application. Therefore, the petition deserves consideration.
19. Insofar as the judgment in case of Mashyak Grihnirman Sahakari Sanstha Maryadit (supra) relied upon by the defendants is concerned, the Hon'ble Apex Court,in this case held that amendment sought belatedly and afterthought cannot be permitted as those amendment was for averting inevitable consequences. The judgment would not have any assistance to the defendants in the present case as held hereinabove.
20. For the following reasons, this petition is allowed. The impugned order dated 26.2.2021 passed by the learned Addl. Civil Judge, Jhalod below application for amendment at Exh.84 filed in Regular Civil Suit No.51 of 2007 is hereby quashed and set aside. The relief claimed in application Exh.84 is allowed. The amendment shall be carried out by the plaintiffs within 15 days from the date of receipt of writ of this order. Rule is made absolute to the aforesaid extent. Interim relief, if any, stands vacated forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 11 of 11 Downloaded on : Mon Sep 18 20:36:08 IST 2023