Gujarat High Court
Ramanbhai Ranchhodbhai Patel vs Deceased Laxmiben Nagindas Patel D/O ... on 17 April, 2025
NEUTRAL CITATION
C/SCA/19108/2018 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19108 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 19109 of 2018
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RAMANBHAI RANCHHODBHAI PATEL & ORS.
Versus
DECEASED LAXMIBEN NAGINDAS PATEL D/O HARIBHAI VITTHALBHAI &
ORS.
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Appearance:
MR MANAN A SHAH(5412) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR NV GANDHI(1693) for the Respondent(s) No. 1.1,1.2,1.3
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/04/2025
ORAL ORDER
1. Heard learned advocate Mr.Manan A. Shah appearing for the petitioners and Ms.Mona Gupta, learned advocate with Mr.N.V.Gandhi appearing for the respondent nos.1.1. to 1.3. Though served, none appears for rest of the respondents.
2. Both these petitions, though touching different set of orders but arising out of the same suit and having same bearing between them, so with the consent of learned advocates appearing for the respective parties, by way of this common judgment, this court is dealing with both these matters.
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NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined
3. So far as Special Civil Application No.19108 of 2018 is concerned, the same filed under Article 227 of the Constitution of India for the following reliefs:-
(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 7.8.2018 passed by Ld. Principal Civil Judge & Judicial Magistrate, First Class, Palsana on application below Exh.65 in Regular Civil Suit No.30 of 2015 (Old Special Civil Suit No.37 of 2006), in the interest of justice;
(B) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned order dated 7.8.2018 passed by Ld. Principal Civil Judge & Judicial Magistrate, First Class, Palsana on application below Exh.65 in Regular Civil Suit No.30 of 2015 (Old Special Civil Suit No.37 of 2006);
(C) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the further proceedings of Regular Civil Suit No.30 of 2015 (Old Special Civil Suit No.37 of 2006 pending in the court of Ld. Principal Civil Judge & Judicial Magistrate, First Class, Palsana;
(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs, as may be deemed fit by this Hon'ble Court, in the interest of justice;
4. The Special Civil Application No.19109 of 2018 also filed under Article 227 of the Constitution of Iseeking following reliefs:-
(A) YOUR LORDSHIPS be pleased to issue appropriate Page 2 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined writ, order or direction, quashing and setting aside the impugned order dated 7.8.2018 passed by Ld. Principal Civil Judge & Judicial Magistrate, First Class, Palsana on application below Exh.66 in Regular Civil Suit No.30 of 2015 (Old Special Civil Suit No.37 of 2006), in the interest of justice;
(B) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned order dated 7.8.2018 passed by Ld. Principal Civil Judge & Judicial Magistrate, First Class, Palsana on application below Exh.66 in Regular Civil Suit No.30 of 2015 (Old Special Civil Suit No.37 of 2006);
(C) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the further proceedings of Regular Civil Suit No.30 of 2015 (Old Special Civil Suit No.37 of 2006 pending in the court of Ld. Principal Civil Judge & Judicial Magistrate, First Class, Palsana;
(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs, as may be deemed fit by this Hon'ble Court, in the interest of justice;
5. The petitioner hearing are original defendants of Regular Civil Suit no.30 of 2015 (old Special Suit No.37 of 2006) filed by the predecessor of respondent Nos.1.1 to 1.3 herein. The suit is filed seeking declaration and injunction, thereby original plaintiff seeking declaration that she has a right, title, interest over the suit properties and asked for the injunction, as prayed for in the suit.
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6. It appears that pending the suit proceeding, there was sale agreement in relation to one of the suit property in favor of respondent No.2 herein, thereby, plaintiff has filed the joining party application under Order 1 R. 10 (2) of CPC below Exhibit 65 to allow the plaintiff to join respondent No.2 herein in the suit proceedings.
7. After hearing the parties, the trial court has allowed the said application, which is challenged by way of the writ application being Special Civil Application No.19108 of 2018.
8. Likewise, the plaintiff has also filed impugned amendment application below Exhibit 66, whereby requested the trial court to permit the plaintiff to amend the suit thereby, allow plaintiff to incorporate additional prayer regarding partition of the suit property and other consequential reliefs. Such application also came to be allowed by the trial court, which is impugned in the writ application being Special Civil Application No.19109 of 2018.
9. Learned advocates appearing for the respective parties Page 4 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined have appraised this Court that during the pendency of the present writ applications, the trial of the suit has been proceeded further and the suit reaches at the final hearing stage.
10. Learned counsel Mr. Manan Shah would submit that the impugned applications filed by the original plaintiff for joining as well as amendment application are wrongly allowed by the trial court, which is contrary to the provisions of law. 10.1 Learned advocate Mr. Shah would further submit that there is no prayer sought against the proposed defendants, i.e., respondent No.2 herein in the suit, and the plaintiff could not have been allowed to join her in the suit, which is essentially filed between the family members in relation to the suit properties in question.
10.2 Learned counsel Mr. Shah would further submit that the trial court has not granted any sufficient reasons while allowing application of joining party and in a very cavalier fashion it has allowed it, which may be interfered with by this Page 5 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined court.
10.3 Learned advocate Mr. Shah would further submit that the plaintiff could not have been permitted to amend the plaint, as a defence so raised by the defendants in the written statement would jeopardize by allowing such application, as original plaintiff has not challenged the partition, which is signed by her.
10.4 Learned advocate Mr. Shah would further submit amendment application is filed belatedly and without any reasons and the same has been allowed by the Trial Court. 10.5 Learned advocate Mr. Shah would further submit that at this stage, if this Court may not entertain this petition, right of defendants to object amended prayers so made in the application, while finally arguing the suit may not be affected and trial court may be advised to decide the lis between the parties as per the evidence on record.
10.6 Making the above submission, the learned advocate Mr. Shah would request this court to allow the present Page 6 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined application.
11. Learned advocate Ms. Mona Gupta appearing with Learned advocate Mr. N.V. Gandhi for the respondents would submit that both these two applications are misconceived at law and this Court, while exercising its power under Article 227 of the Constitution of India, may not entertain these applications.
11.1 Learned advocate Ms. Gupta would submit that during the pendency of the writ applications, the trial of the suit has completed and the suit is posted for final argument, and in fact, trial court is in the midst of final hearing of the suit, then at this stage, this court may not interfere with the orders impugned in the present writ applications. 11.2 Learned advocate Ms. Gupta would submit that respondent No.2 - defendant No.11 - proposed party, was required to be joined having a semblance in one of the suit properties purchased by her. She would rely upon the decision of Honourable Supreme Court of India in the case of Sumtibai Page 7 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined & Others vs Paras Finance Co. Mankanwar reported in (2007) 10 SCC 82 and Mumbai International Airport Pvt. Ltd vs Regency Convention Centra & Hotels & Ors reported in (2010) 7 SCC 417.
11.3 Learned advocate Miss Gupta would further submit that so far as amendment application is concerned, no rights of defendants would have been prejudiced by granting such amendment, and as such, necessary issues and evidence are already laid by the parties, then the trial court will decide suit or lis between the parties as per such evidence. She would further submit that unless the amendment, sought for is going to change the nature of suit and if it is hopelessly time-barred, the trial court is required to grant such amendment, which is correctly done so by trial Court. 11.4 To buttress her argument, she has relied upon the decision of Honourable Supreme Court of India in the case of Life Insurance Corporation Of India vs Sanjeev Builders Private Limited reported in (2022) 16 SCC 1.
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NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined 11.5 Making the above submission, she would request this court to allow the civil application filed by the respondent.
12. At the outset, it is required to be noted here that during the pendency of both these writ applications, the trial of the suit is almost completed, as it is posted for final argument of the parties, and this Court has been informed by the learned advocate appearing for the respective parties that final arguments have already been commenced.
13. So, at this stage, considering the aforesaid facts and circumstances of the case, it would not be appropriate for this Court to interfere with the impugned orders passed by the trial court.
14. Nonetheless, considering the fact that proposed defendant i.e., defendant No.11 - respondent No.2, having purchased one of the suit property, having interest in the subject matter, thereby plaintiff being dominus litis is well within her right to join such transferee pendente lite. The issue is no longer remained res integra, which could be applied as clarified in Page 9 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined the case of Sumitabai (supra) and Mumbai International (supra).
15. So far as amendment, which has been sought for and granted by the trial court is concerned, in view of the aforesaid fact that the parties have already laid their evidence on their respective defences, it would not be appropriate to disturb such impugned order at this stage, except to observe that by granting such amendment, nature of the suit would not going to change and so far as the question of limitation is concerned, it would be writ large before the trial court to decide issue of limitation, which shall be considered by the trial court at the conclusion of hearing of the suit.
16. It is also clarified by Honourable Supreme Court of India in the case of Sanjeev Builders (supra) that where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
17. The trial court is requested to decide the lis between the parties as per the evidence coming forth on record without Page 10 of 11 Uploaded by MOHD MONIS(HC01900) on Sat Apr 19 2025 Downloaded on : Mon Apr 21 21:53:54 IST 2025 NEUTRAL CITATION C/SCA/19108/2018 ORDER DATED: 17/04/2025 undefined being influence by any of the observations so made in the orders impugned and order passed by this Court.
18. At last, in view of the aforesaid facts and circumstances, and considering the scope and ambit and power of this court to interfere with the impugned order while exercising its power under Article 227 of the Constitution of India is very limited, and keeping in mind the ratio of Sameer Suresh Gupta (supra) and Garment Craft (supra), I am of the view that there is no merit in the present writ applications, which are not required to be entertained and is hereby DISMISSED. Rule discharged. No order as to costs.
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