Gujarat High Court
Vishram Meghaji Maheshwari vs Arjan Meghaji Maheshwari on 5 August, 2025
NEUTRAL CITATION
C/SCA/11306/2019 ORDER DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11306 of 2019
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VISHRAM MEGHAJI MAHESHWARI
Versus
ARJAN MEGHAJI MAHESHWARI & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Petitioner(s) No. 1
MS JEMINI S PATEL(10140) for the Respondent(s) No. 4,5,6,7
NOTICE SERVED for the Respondent(s) No. 1,2
SANJIVKUMAR T PATEL(8914) for the Respondent(s) No. 5,6,7
UNSERVED EXPIRED (N) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/08/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Ms. Jemini S. Patel waives service of notice of rule on behalf of respondents No. 4, 5, 6 & 7. Though served, none appeared behalf of rest of the respondents.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"(a) Your Lordship may be pleased to quash and set aside the order dated 27/03/2019 passed by the Learned Principal Civil Judge, Mundra at Bhuj in Regular Civil Suit No. 16 of 2011 on Exhibit- 62 and be pleased to allow the amendment as prayed in application below Exhibit- 62, by issuing a writ of mandamus and/or certiorari and/or any other writ, order or directions and provide one more opportunity to cross examine the witness of respondent.Page 1 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025
NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined
(b) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased stay the further proceeding of the Regular Civil Suit No. 16 of 2011 pending with the Learned Principal Civil Judge, Mundra, Kachchh and also stay the order dated 27/03/2019 passed by the Learned Principal Civil Judge, Mundra, Kachchh in Regular Civil Suit No. 16 of 2011 on Exhibit-62.
(c) Such other and further reliefs as are deemed fit in facts and circumstances of this case may kindly be granted.
(d) To provide cost of this petition."
Facts of the case
3. The petitioner herein is original plaintiff and
respondents are original defendants of Regular Civil Suit No. 16 of 2011. The suit came to be filed by the plaintiff seeking declaration, injunction as prayed in the suit. The plaintiff has challenged the registered sale-deed dated 30.03.1989, 04.05.1989, 04.12.2008 executed between defendants No.1 to 3.
3.1 As per the case of the plaintiff, he is also one of the co- owner of the suit property along with original defendants No. 1 & 2 but he was residing outside India for quite long time, by misusing the authority and in absence of plaintiff, sale-deed came to be executed between defendants No. 1 to 3. Page 2 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined 3.2 It appears that during the pendency of the suit, defendant No.3 appears to have executed sale-deed on 01.03.2012 in relation to suit property in favour of defendants No. 4 to 7.
3.3 So, at the first instance, the plaintiff had filed an application below Exh. 34 under Order 1 rule 10 of CPC to join subsequent purchasers of suit property i.e. defendants No. 4 to 7. Such application was filed on 12.04.2013 which came to be allowed by the trial Court on 05.09.2018.
3.4 The plaintiff appears to have filed impugned amendment application below Exh. 62 under Order 6 rule 17 of CPC on 26.12.2018 whereby, sought an amendment of plaint and requested the trial Court to allow the plaintiff to challenge the registered sale-deed dated 01.03.2012 executed by defendant No.3 in favour of defendants No. 4 to
7. Thus, by way of impugned amendment application, the plaintiff sought an additional prayer in regards to cancellation of the aforesaid sale-deed executed in favour of defendants No. 4 to 7.
3.5 The impugned amendment application was contested by the defendants and after hearing the parties, the trial Court vide its order dated 27.03.2019 rejected the impugned Page 3 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined amendment application only on the ground that amendment sought for, is time barred.
3.6 Being aggrieved and dissatisfied with the aforesaid order, the original plaintiff has filed the present writ application.
Submission of the petitioner- original plaintiff
4. Learned advocate Mr. Hiren Modi would submit that the trial Court could not have rejected the impugned amendment application, inasmuch as per settled legal position of law, all amendments require to be granted in the interest of justice. He would further submit that there was no mala-fide intention on the part of the plaintiff to file the impugned amendment application in the year 2018 questioning the sale-deed executed in the year 2012.
4.1 Learned advocate Mr. Modi would further submit that defendants No. 4 to 7 in whose favour sale-deed in question was executed by the defendant No.3 were allowed to join in the suit on 05.09.2018 by the trial Court. So, once the defendants No. 4 to 7 are joined in the suit, the plaintiff has right to question the sale-deed executed in their favour.
Page 4 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined 4.2 Learned advocate Mr. Modi would further submit that the issue of limitation is a mixed question of law and fact, and therefore, it could not have been gone into by the trial Court at the stage of adjudication of the impugned amendment application. He would further submit that no prejudice would cause to the defendants if amendment sought for, could have been granted by the trial Court. Inasmuch as, the defendants have all right to file their amended written statement against such amended plaint and also can lead appropriate evidence in support of their defence.
4.3 To buttress his argument, learned advocate Mr. Modi would refer and rely upon the decision of Hon'ble Apex Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1.
4.4 Making the above submissions, learned advocate Mr. Modi would request this Court to allow the present writ application.
Submission of the respondent-defendants 5.0 Per contra, learned advocate Ms. Jemini Patel would submit that there is no error much less any gross error of law Page 5 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined committed by the trial Court while rejecting the impugned amendment application. She would further submit that when amendment sought for is hopelessly time barred, such amendment could not have been granted which is correctly not granted by the trial Court.
5.1 Learned advocate Ms. Patel would further submit that it was well within the knowledge of the plaintiff about the execution of sale-deed dated 01.03.2012 in question when he filed an application below Exh. 34 under Order 1 rule 10 of CPC on 12.04.2013 and in that view of the matter, within three years from the date of knowledge of execution of sale- deed, the plaintiff was require to challenge such sale-deed. It is submitted that undisputedly, the plaintiff having not challenged the sale-deed within period of limitation as prescribed under Article 58 & 59 of the Indian Limitation Act, the amendment as sought for, can not be granted.
5.2 Making the above submissions, learned advocate Ms. Patel would request this Court to reject the present writ application.
Point for determination Whether in the facts and circumstances of the case, the trial Court has any gross error of law and or jurisdictional error committed by the trial Court while rejecting the impugned Page 6 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined amendment application filed by the plaintiff ?
Analysis
6. The facts which are narrated hereinabove are not in dispute. The plaintiff having first came to know about the execution of registered sale-deed dated 01.03.2012 executed in favour of defendants No. 4 to 7 first filed an application below Exh. 34 under Order 1 rule 10 of CPC on 12.04.2013.
6.1 It is true that such application was allowed by the trial Court on 05.09.2018. Nonetheless, it remain undisputed that right to sue first accrued in favour of plaintiff to seek declaration/ cancellation of the aforesaid sale-deed executed in favour of defendants No. 4 to 7 when plaintiff came to know about such sale-deed and it would not be accrued when defendants No. 4 to 7 joined in the suit.
6.2 It remain undisputed that plaintiff came to know about the execution of registered sale-deed dated 01.03.2012 in favour of defendants No. 4 to 7 in the year 2013 itself when he filed an application below Exh. 34 under Order 1 rule 10 of CPC. As per Article 58 read with Article 59 of the Limitation Act when the plaintiff sought any declaration/ cancellation of registered sale-deed executed in favour of Page 7 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined defendants No. 4 to 7, the plaintiff was supposed to either file an independent suit or amended the suit within three years from the date of first become known about execution of the aforesaid sale-deed in favour of defendants No. 4 to 7.
6.3 Having so observed earlier, such knowledge was gathered by the plaintiff in the year 2013 then within three years thereafter, the plaintiff could have amended the suit by filing the amendment application, within such period prescribed under the law. Whereas, the impugned amendment application came to be filed by the plaintiff on 26.12.2018 which is ex-facie, apparently, hopelessly time barred.
6.4 The issue germane in the application is no longer remain res-integra as already decided by this Court in the case of Ambaben D/o Balubhai Mohanbhai Patel and W/o Thakorbhai Vallabhbhai Patel and Ors. Vs. Deceased Ratanben Wd/o Balubhai Mohanbhai Patel passed on Special Civil Application No. 2323 of 2024 dated 07.04.2025 reported in 2025 (0) GUJHC 21093, wherein after placing reliance upon aforesaid provisions of limitation act and the various decisions of the Hon'ble Apex Court, this Court held thus.
"12. By taking into account all the dates as referred hereinabove, Page 8 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined which is beyond the period as prescribed under Article 58 read with Article 59 & 113 of the Limitation Act, 1963 (herein after referred as Act, 1963), thus, the amendment which is sought for is hopelessly time barred and once there is no dispute about the aforesaid dates, the delay in question is not an arguable issue at all.
13. At this stage, I would like to refer relevant provisions of Limitation Act, 1963. The declaration seeking transaction void and or seeking any declaration would be governed by Articles 58, 59 and or 113 of the Act, 1963 as the case may be. A period of limitation which is prescribed under Act, 1963 is a three years. Such period begins to run when the right to sue first accrues and or when the facts entitling the plaintiff to have the instrument first become known to him as the case may be. The relevant aforesaid articles read as under :-
Description of Suit Period of Time from which period Limitation begins to run PART III.--SUITS RELATING TO DECLARATIONS
58. To obtain any other Three When the right to sue declaration Years first accrues PART IV.--SUITS RELATING TO DECREES AND INSTRUMENTS
59. To cancel or set aside Three When the facts entitling an instrument or decree or Years the plaintiff to have the for the rescission of a instrument or decree contract cancelled or set aside or the contract rescinded first become known to him PART X.--SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
113.Any suit for which Three When the right to sue no period of limitation is years accrues.
provided elsewhere in
this Schedule.
14. By plain reading of the aforesaid provisions of the Limitation Act, the plaintiffs were supposed to challenge the sale deed within three years from the date of their knowledge i.e. Page 9 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined 2011 or 2018 as the case may be. But undisputedly not done so till filing of impugned application on 21.08.2023.
15. At this stage, it is pertinent to refer and rely upon the decision of the Apex Court in the case of Revajeetu Builders and Developers v. M/s. Narayanswamy and Others reported in (2009) 10 SCC 84 and in the said decision it was held as under :-
"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case;
(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by Page 10 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
(emphasis supplied)
7. Likewise, the Hon'ble Apex Court in the case of Sanjeev Builders Pvt. Ltd. (supra), which in fact relied upon by learned advocate Mr. Modi, has also succinctly summarized the principles on which an amendment application can be granted or not to be granted. It has summed up their conclusion as under :-
"71. final conclusions may be summed up thus :
71.1 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 beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
71.2 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 Order VI Rule 17 of the CPC.
71.3 The prayer for amendment is to be allowed : 71.3.1 If the amendment is required for effective and proper adjudication of the controversy between the parties, and 71.3.2 To avoid multiplicity of proceedings, provided:
(a) the amendment does not result in injustice to the other side, Page 11 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined
(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).
71.4 A prayer for amendment is generally required to be allowed unless :
71.4.1 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, 71.4.2 The amendment changes the nature of the suit.
71.4.3 The prayer for amendment is malafide, or 71.4.4 By the amendment, the other side loses a valid defence.
71.5 In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6 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.
71.7 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.
71.8 Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9 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 Page 12 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined separately for decision."
(emphasis supplied)
8. This Court has also recently had an occasion to decide very issue involved in present case wherein after revisiting law on the subject in its judgment dated 07-03-2025 passed in SCA No. 26326 of 2022 in a case of Chiragbhai Arvindbhai Desai vs. Heirs of Pushpaben D/o. Ambalal Javerbhai and Wd/o Manubhai Parshottambhai & Ors. held as under :-
"12.7 Thus, when the plaintiff has come out with an amendment application filed in the year 2021 without giving any explanation about delay in seeking amendment as sought for declaration thereby, to challenge a sale deed in question executed in the year 1992 then, trial Court was well within his right to reject the impugned application having found that declaration as sought for is time barred.
14.7 So, in view of the aforesaid provisions of the Act, 1963 as well as ratio of Hon'ble Apex Court in the case of Premsingh (supra) and Ramti Devi (supra), if apply to the present case, plaintiff was required to challenge the sale deed in question when plaintiff first came to know about it i.e. three years from date of such knowledge as right to sue accrued at that time. Having so observed in earlier part of this judgment and so also by the trial Court, the plaintiff was well aware about the sale-deed in question in year 1992/1993 itself, he was required to challenge the sale deed in question within three years from such period. The plaintiff having remain indolent for decades and wake up from slumber, sought to challenge the sale deed in question in the year 2021, considering the aforesaid provision of Limitation Act, 1963, his claim is hopelessly time barred.
16. .......... the impugned amendment application filed by the plaintiff thereby, sought the declaration in turn to get it cancel registered sale deed dated 03-10-1992 in question executed by Page 13 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025 NEUTRAL CITATION C/SCA/11306/2019 ORDER DATED: 05/08/2025 undefined defendant no. 1 and 2 in favour of defendant no. 3 and 4 is correctly not allowed by the trial Court as amendment sought for is hopelessly time barred."
(emphasis supplied)
9. When the aforesaid dates and events are remain undisputed on record, no error can be found in the impugned order, inasmuch as the amendment sought by the plaintiff is hopelessly time barred which could not have been granted which is correctly not granted by the trial Court.
Conclusion
10. In view of the aforesaid observation, discussion and reasons, this Court comes to only one conclusion that impugned order does not suffers from any gross error of law and or any jurisdictional error.
11. Thus, this Court finds that there is no merit in the present writ application, which requires to be rejected, which is hereby rejected. Interim relief granted earlier, if any, stands vacated forthwith. Rule is discharged. No order as to costs. The trial Court should proceed with the suit in accordance with law.
(MAULIK J.SHELAT,J) SALIM/ Page 14 of 14 Uploaded by SALIM(HC01108) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:58 IST 2025