Gujarat High Court
Chetnaben Chetankumar Patel vs Bhalabhai Mohanbhai Koli on 24 April, 2025
NEUTRAL CITATION
C/SCA/5208/2025 ORDER DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5208 of 2025
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CHETNABEN CHETANKUMAR PATEL
Versus
BHALABHAI MOHANBHAI KOLI & ORS.
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Appearance:
MR SANDEEP R LIMBANI(5977) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/04/2025
ORAL ORDER
1. When the matter was taken up for hearing, at the outset, learned advocate Mr. Vishal C. Mehta who seeks permission of the Court to allow him to appear for respondent No.10, in the matter. Permission, as sought for, is granted. Learned advocate Mr. Mehta can file his Vakalatnama within 2 days from today.
2. Heard learned advocate Mr.Sandeep R. Limbani appearing for the petitioner and learned advocate Mr.Vishal C. Mehta for respondent No.10. With the consent of learned advocates for the respective parties, the matter is taken up for hearing.
3. The present application is filed under Article 227 of the Constitution of India seeking following reliefs:- Page 1 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025
NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined "(a) A writ of certiorari or any other writ order or direction may kindly be issued to quash and set aside the order passed by the Principle Senior Civil Judge, Halwad, District Morbi in Special Civil Suit No. 5 of 2018(Old no;17 of 2016) below application, Exh. 85, dated 11-03-2025 at Annexure 'I' herein by allowing the said application, at Exh. 85, preferred by the Petitioner as prayed for, in the interest of justice.
(b) Pending hearing and final disposal of the present Special Civil Application, stay the further proceedings of Special Civil Suit No. 5 of 2018,(Old no; 17 of 2016) at Annexure -D to this petition and pending before the court of Principle Senior Civil Judge, Halwad, District Morbi, may kindly be ordered to be stayed, in the interest of justice.
(c) Any other and/or further reliefs that may be deemed necessary and expedient in the interest of justice may kindly be granted."
4. The parties may be referred to as per their original position in the suit.
5. The short facts of the case, which are necessary to adjudicate the present writ application, are as under:-
6. The petitioner herein is original plaintiff who instituted Special Civil Suit No.5 of 2018 (Old No.17 of 2016) against respondents herein.
6.1 The suit is titled as for declaration, injunction and performance of agreement as well as cancellation of sale deed executed by original owner of suit land in favor of other private respondents. Nonetheless, prayers for specific Page 2 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined performance of agreement for sale is not sought for. 6.2 After pleadings were filed, the Trial Court has framed the issues and the plaintiff has put herself into the witness box for cross-examination and in the midst of cross-examination, when the question put to her that no relief is sought seeking performance of agreement for sale in the suit by showing her prayer clause, plaintiff felt to file the impugned amendment application below exit 85.
6.3 The impugned application is filed seeking an amendment in the prayer clause, thereby it has been prayed that the prayer may be added whereby original owner of such land be directed to execute sale deed on the basis of agreement for sale dated 27th September, 1999 (Exhibit 66). So, the plaintiff has come up with the impugned amendment application seeking the prayer of specific performance of agreement for sale which was forgotten by her while instituting the suit.
6.4 The plaintiff has only stated the reason of delay, in Page 3 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined filing such impugned amendment application, is a bona fide mistake and such facts came to notice during her cross- examination.
6.5 After hearing the parties at first in point of time, the Trial Court has allowed impugned application. It further appears that some of the contesting defendants have challenged the order dated 12.12.2024 passed by Trial Court granting such amendment application before this Court by way of Special Civil Application No.374 of 2025 which came to be partly allowed with consent of parties by this Court vide its order dated 23rd January, 2025, thereby the matter was remanded back to the Trial Court with the specific observation that aspect of proviso to Order VI Rule 17 of the Civil Procedure Code, (hereinafter referred to as "CPC") vis-a-vis due diligence of plaintiff while submitting the amendment application be decided while adjudicating impugned amendment application. 6.6 After remand of the matter, the Trial Court had heard parties afresh and accordingly, re-adjudicated the impugned Page 4 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined application and vide its order dated 11th March, 2025, rejected the impugned application on the ground that neither any submission with regard to due diligence have been made by the learned advocate for the plaintiff nor anything pointed out by the plaintiff during the course of submission in relation to observance of due diligence by plaintiff while bringing amendment.
7. Being aggrieved and dissatisfied with the aforesaid order, the original plaintiff has preferred the present writ application. SUBMISSION OF THE PETITIONER - PLAINTIFF
8. Learned advocate Mr. Sandeep R. Limbani, would submit that when the Trial Court had, at first round, allowed the application, by specifically observing that the amendment, which has been sought for by the plaintiff, is required to be granted and there would not be any serious prejudice caused to the defendants then, the Trial Court ought to have granted the amendment application.
8.1 Learned advocate Mr. Limbani would further submit Page 5 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined that Trial Court did observe in impugned order that to avoid any multiplicity of proceeding and to give liberal meaning to proviso to Order VI Rule 17 of CPC, the amendment is required to be granted, then the Trial Court could not have rejected the amendment application.
8.2 Learned advocate Mr. Limbani would submit that there was a mistake on the part of advocate and due to such bona fide mistake, necessary prayer in the suit could not have been incorporated, which would not disentitle the plaintiff to incorporate such prayer when essentially in the suit as well as in the prayer clause, plaintiff has already sought for execution of sale deed in her favor.
8.3 Learned advocate Mr. Limbani would further submit that no serious prejudice would cause to the defendants if amendment, as sought for, can be granted as it is only explanatory in nature and the suit is already instituted within limitation, question of period of limitation to claim performance of agreement would not arise in the present case. Page 6 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025
NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined 8.4 Learned advocate Mr. Limbani would further submit that it is settled legal position of law that the rule of procedure is handmade of justice and liberal approach is always to be taken by court, especially, when an amendment application is being adjudicated.
8.5 Learned advocate Mr. Limbani would further submit that the Court is required to avoid hyper-technical approach while advancing justice to the parties. 8.6 To buttress his argument, Learned advocate Mr. Limbani would rely upon following decisions of Hon'ble Supreme Court of India:-
(i) Jai Jai Ram Manohar Lal vs National Building Material Supply, Gurgaon, reported in (1969) 1 SCC 869 (para 5)
(ii) Abdul Rehman and Another vs. Mohd. Ruldu and Others, reported in (2012) 11 SCC 341 (Para 10)
(iii) Varun Pahwa vs. Renu Chaudhary reported in (2019) 15 SCC 628 (Para 7 and 8) 8.7 Making the above submissions, learned advocate Mr. Limbani would request this Court to allow the present writ Page 7 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined application.
SUBMISSION OF THE RESPONDENT NO.10.
9. Learned advocate Mr.Vishal C. Mehta appearing for respondent No.10 would adopt the argument of learned advocate Mr. Limbani appearing for the petitioner, thereby would submit that as the Trial Court has committed an error while rejecting the impugned amendment application as no serious prejudice would be caused to defendants, especially, when plaintiff's evidence is yet not over. 9.1 So, learned advocate Mr.Mehta would request this Court to allow the present application. THE POINT FOR DETERMINATION
10. The short question falls for consideration of this Court is as to whether any gross error and or jurisdictional error committed by Trial Court while rejecting the impugned amendment application, especially when plaintiff failed to submit and show observance of her due diligence while submitting impugned amendment application? Page 8 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025
NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined ANALYSIS
11. The facts, which are observed herein, are not in dispute. As such, it is remain undisputed fact that the impugned amendment application is filed when trial of suit has already commenced and it was presented at the stage where plaintiff was cross-examined by the defendants. To appreciate the controversy in detail, I would first like to refer to Order VI Rule 17 of CPC which reads as under:-
"ORDER VI-PLEADINGS GENERALLY
17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
12. The proviso to Order VI Rule 17 of CPC would indicate that no application for amendment shall be allowed if a trial has commenced unless party could not have raised the matter before commencing of trial by way of due diligence. The court Page 9 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined is required to come to the conclusion that in spite of due diligence, parties could not have raised such amendment.
13. When, in earlier round of litigation, the impugned amendment application came to be allowed by the Trial Court without observing and taking note of such proviso, this Court while remanding the matter back to the Trial Court vide its order dated 23rd January, 2025 observed as under in para 8 and 9.
"8. Thus, in view of the aforesaid facts and provision of law, as well as the aforesaid consensus ad-idem between the parties, the impugned judgment and order is hereby quashed and set aside. The trial Court is hereby directed to decide afresh impugned application seeking an amendment application filed below Exh. 85 in Special Civil Suit No. 5 of 2018 pending before the court of learned Principal Senior Civil Judge, Halvad preferably within a period of one month from the date of receipt of this order by giving full opportunity of hearing to both the sides and after considering the application afresh decide the same in accordance with law. As a word of caution of learned trial Court is required to consider the provisions of law while adjudicating any application.
9. Prima-facie, this Court is of the view that whenever there is an amendment application which is press into service after framing of the issue i.e. after commencement of the trial, the proviso of Order VI rule 17 of CPC always requires to be taken note by the trial Court while adjudicating such application."
14. It appears that on remand of the matter, it was expected Page 10 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined from plaintiff to come out with as well as to show at given point of time, at least prior to commencement of trial of suit, despite due diligence on her part, she could not brought amendment in the suit.
15. It appears from bear reading of impugned amendment application that except the excuse of bona fide mistake on the part of plaintiff, nothing has been stated as to why such amendment could not be presented. It is expected when put to the notice by this Court to the plaintiff and the matter was remanded back to the Trial Court to decide amendment application in light of proviso to Order VI Rule 17 of CPC that plaintiff could have persuaded the Trial Court to consider due diligence, if any.
16. It is surprising to know as observed in para 6.1 of impugned order by the Trial Court that no submission with regard to due diligence have been made by the plaintiff after the matter was remanded back to the Trial Court. The relevant observation of the Trial Court made in para 6.1 and 6.2 in its Page 11 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined impugned order requires reproduction, which are as under:-
"[6.1] Considering the afore noted order of the Hon'ble High Court of Gujarat, the matter kept for further hearing on the point of 'due deligence' as per the order passed below the application on hand. As far as due deligence is concerned, the plaintiff has not pleaded in her whole application; and therefore, the discussion on the point of due deligence cannot be considered. Even after passing of specific order, the Ld. Adv. for the plaintiff has not made any submission with regard to due deligence. In absence of any reason / fact which establish that in spite of due deligence, the party could not have raised the matter before the commencement of trial.
[6.2] Considering the facts of the pleading in the plaint, the plaintiff has also not reserved their right under Order-II, Rule-2 of the CPC. Earlier the application on hand had been allowed on the grounds as mentioned in afore noted para-[1], so far as the everments of due deligence is concerned, the plaintiff has not mentioned a single word with regard to the same. Though this Court believes that present application should be allowed to avoid multiplicity of proceedings and meritourious disposal of the suit as well as the grounds as reproduced in afore noted para-[1], in absence of pleadings of the plaintiff about due deligence in whole application, the said relief cannot be allowed. This Court is not in a position to allow the present application in respect of due deligence. It is settled law that the plaintiff cannot go beyound his / her pleading. Therefore, in light of the proviso of Order- VI, Rule-XVII of CPC, there is no option except to reject the application."
17. In light of the aforesaid facts and the absence of any submission made by the plaintiff as regards to due diligence observed by plaintiff which prevented the plaintiff not to submit at the relevant point of time, I am also of the view that no gross error and or any jurisdictional error has been committed by the Trial Court while rejecting the impugned Page 12 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined application as in absence of showing due diligence by plaintiff, Court could not have granted such amendment when presented after commencement of trial.
18. So far as decisions, which are cited by learned advocate Mr. Limbani in support of his submissions are concerned, there is no cavil that rule of procedure is handmade of justice and a liberal approach is required to be taken by the Trial Court while dealing with such type of amendment applications, but at the same time, a provision of law, thereby, right of Court has been taken away to some extent cannot be ignored, otherwise, such provision become otiose i.e. proviso to Order 6 R. 17 of CPC. Even if considering principle of harmonious construction of interpretation of statue also once trial of the suit commenced unless there is a due diligence shown by the party, who sought amendment, no such amendment can be granted by the court. The liberal approach may be considered in relation to observance of due diligence subject to its shown and argued by the party but in its absence, amendment can Page 13 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025 NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined not be granted.
19. Thus, in absence of any cogent and convincing reasons stated in the impugned application, which can satisfy the conscious of the court that there was a due diligence on the part of plaintiff in not to bring the amendment on record, as well as unfortunately no submissions have been canvassed before the Trial Court when the matter remanded back in that regards on due diligence issue, this Court cannot further examine the matter having limited jurisdiction under Article 227 of the Constitution of India.
20. Lastly, I would have to remind myself that this Court while dealing with application filed under Article 227 of the Constitution of India having its limitation and scope of interference which is well defined by the Honourable Supreme Court of India. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
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NEUTRAL CITATION C/SCA/5208/2025 ORDER DATED: 24/04/2025 undefined
21. In light of the aforesaid discussion, observation and reasons, I am of the view that there is no error, much less any gross error and/or a jurisdictional error committed by Trial Court while rejecting the impugned application filed below Exhibit 85, thereby, not granted amendment, as sought for, by the plaintiff as plaintiff has failed to show and submit due diligence while bringing such amendment on record after commencement of trial of suit.
22. Thus, in view of aforesaid, the present application is meritless and requires to be dismissed and the same is hereby DISMISSED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 15 of 15 Uploaded by MOHD MONIS(HC01900) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 01:43:06 IST 2025