Gujarat High Court
Pathan Aiyubkhan Ishhakhan vs Patel Parsottambhai Joitaram on 24 September, 2025
NEUTRAL CITATION
C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4342 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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PATHAN AIYUBKHAN ISHHAKHAN & ORS.
Versus
PATEL PARSOTTAMBHAI JOITARAM & ORS.
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1,2,3,4,5
MR IM PANDYA(546) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/09/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Tejas P. Satta for the petitioners and learned Advocate Mr. I. M. Pandya for the respondents. The respondent No.1 died but his legal heirs are already brought on record of this writ application.
2. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs: Page 1 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025
NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined "(A) The Hon'ble Court be pleased to issue appropriate writ, direction or order in nature of mandamus to quash and set aside the impugned order dated 10.01.2014 passed below Exh.14 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 in Regular Civil Suit No.79/2013 by the petitioners.
B) The Hon'ble Court be pleased to stay the implementation of the order dated 10.01.2014 passed below Exh.14 application in Regular Civil Suit No.79/2013.
(C) The Hon'ble Court be pleased to pass such other orders as may be deemed just and proper in the circumstances of the case."
3. As far as possible, the parties will be referred to as per their original position before the Trial Court.
4. THE SHORT FACTS OF THE CASE:
4.1. The petitioners herein are original plaintiffs, whereas, respondents are original defendants of Regular Civil Suit No.79/2013, pending before the Senior Civil Judge, Mehsana.
The suit came to be filed seeking the easementary right of the plaintiffs, which was obstructed by the defendants. 4.2. It appears that pending the suit, an amendment application under Order 6, Rule 17 of the Code of Civil Procedure, 1908, came to be filed by the plaintiffs below Exh.14 in the suit, whereby, they sought an amendment to the effect that during Page 2 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined the pendency of the suit, defendants have constructed permanent wall and one room on the subject matter of the suit land, whereby, it affects the right of way of the plaintiffs, which requires to be removed by granting mandatory injunction. There are other miscellaneous amendments as regards few deletion of the word in the plaint, also sought for in the amendment application. Such application was opposed by the defendants.
4.3. After hearing the parties, the Trial Court vide its order dated 10th January 2014, rejected the impugned amendment application. Hence, the present application.
5. SUBMISSION OF THE PETITIONERS-PLAINTIFFS:
5.1. Learned Advocate Mr. Satta would submit that the Trial Court has committed gross error of law by not allowing the impugned amendment application as prayed for. It is submitted that the amendment application was filed prior to the commencement of trial, inasmuch as it was filed before even deciding the injunction application.
5.2. Learned Advocate Mr. Satta would submit that as per the settled legal position of law which he placed reliance upon, all Page 3 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined amendments filed prior to the commencement of trial needs to be granted by the Trial Court unless it changes the nature of the suit, barred by law or found to be vexatious. It is respectfully submitted that the amendment sought for by the plaintiffs would neither change the nature of the suit nor barred by any law, requires to be granted. 5.3. Learned Advocate Mr. Satta would further submit that the Trial Court, while adjudicating the impugned application, not elaborated as to how the amendment would change the nature of the suit. It is submitted that the suit filed claiming easementary right of the plaintiffs, whereas, during the pendency of the suit, defendants tried to create further hurdles by putting permanent obstruction in the way of the plaintiffs, thereby, need arise to file amendment application, which should have been granted, in the interest of justice. 5.4. Learned Advocate Mr. Satta would submit that when the impugned order is erroneous, perverse and contrary to the settled principles of law and so also not in proper exercise of its jurisdiction, this Court should interfere with the impugned order while exercising its power under Article 227 of the Page 4 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined Constitution of India.
5.5. To buttress his arguments, learned Advocate Mr. Satta would rely upon the following two decisions:
(i) Life Insurance Corporation Of India Versus Sanjeev Builders Private Limited & Anr reported in (2022) 16 SCC 1;
(ii) Sampath Kumar V/s. Ayyakannu and another reported in (2002) 7 Supreme Court Cases 559.
5.6. Making the above submissions, learned Advocate Mr. Satta would request this Court to allow the present writ application.
6. SUBMISSION OF THE RESPONDENTS-DEFENDANTS:
6.1. Per Contra, learned Advocate Mr. Pandya would submit that there is no error much less any gross error committed by the Trial Court while rejecting the impugned application. It is submitted that this Court while exercising its jurisdiction under Article 227 of the Constitution of India, should not interfere with the order passed by the Trial Court, inasmuch as there is neither any illegality nor irregularity committed and so also, there was no jurisdictional error committed by the Trial Court while passing the impugned order.
6.2. Learned Advocate Mr. Pandya would further submit that the Page 5 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined entire suit of the plaintiffs is hit by Section-41 of the Easements Right Act, 1882 (hereinafter referred to as "Act, 1882"). It is submitted that when the relief sought in the plaint itself is not to be granted and made available to the plaintiffs, the question of granting such amendment would not arise. So, according to his submission, there is no error committed by the Trial Court while rejecting the impugned application. 6.3. Learned Advocate Mr. Pandya would further submit that the Trial Court has correctly observed that by granting an amendment as sought for, would change the nature of the suit, inasmuch as the suit filed seeking easementary right/claim of the plaintiffs, whereas by way of amendment, the plaintiffs want to seek a mandatory injunction, inasmuch as asking for relief of removing permanent constructions as alleged in the application. It is submitted that this prayer would definitely changes the nature of the suit from seeking easementary right to mandatory relief.
6.4. Making the above submissions, learned Advocate Mr. Pandya would request this Court not to entertain the present writ application.
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NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined
7. No further and no other and further submissions are made by any of the learned Advocates appearing for the respective parties.
8. Heard learned Advocates appearing for the respective parties at length.
9. The facts which are observed hereinabove are not in dispute.
The suit in question is filed seeking easementary right of the plaintiffs, which is alleged to have been obstructed by the defendants. It also remained undisputed that the injunction application was not decided at the time of filing the impugned amendment application. What is claimed in the amendment application that during the pendency of the suit, defendants have put up permanent construction in the form of a wall and a room, thereby, permanently obstructed the way of the plaintiffs. So, need arose to file amendment in the plaint, thereby, plaintiffs can claim mandatory relief in the plaint itself.
10. The reasons assigned by the Trial Court while rejecting the impugned application is thoroughly misconceived on facts as well as at law, requires to be interfered with by this Court for Page 7 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined following reasons, even though this Court has limited jurisdiction under Article 227 of the Constitution of India.
11. The Trial Court has rejected the impugned amendment application mainly on the ground that if the amendment is granted would change the nature of the suit. As such, there are no satisfactory reasons assigned by the Trial Court to arrive at such conclusion. Having so observed, the facts remained that the suit is filed seeking easementary right of the plaintiffs, which of course, will be adjudicated by the Trial Court during the course of the trial. If something happens during the pendency of the suit by alleged act of the defendants, which ultimately going to affect the final outcome of the suit, thereby, the plaintiffs want any further relief which they thought it, would requires to get complete justice, for which amendment sought for, according to my view, such amendment should be granted by the Court.
12. According to this Court, by granting the amendment as sought for in the impugned application by way of the impugned application, it will neither change the nature of the suit nor would the amendment hit by any provision of law, including Page 8 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined Section 41 of the Act 1882. The entitlement of any claim made by the plaintiffs in the suit would be decided by the Trial Court as per the evidence coming forth on the record of the suit. But at this stage while adjudicating the amendment application, such aspect need not required to be gone into because the issue germane and raised by the learned Advocate Mr. Pandya, requires to be proved by leading appropriate evidence being question of fact and law, undoubtedly not a pure question of law.
13. Furthermore, subsequent development taken place during pendency of suit, plaintiff well within his right to bring such fact on record of the suit by way of an amendment. To avoid any multiplicity of proceeding between the parties, such type of amendment especially pre-trial amendment requires to be granted except specifically barred by any law or would completely change the nature of suit. Such would not be the case on hand.
14. At this stage, it would also be apt to refer decision of the Honourable Apex Court in the case of Sampath Kumar (supra), wherein it held thus:
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NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined "[6] It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the land since before the institution of the suit itself.
[7] In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings."
(emphasis supplied)
15. Likewise, in the case of Sanjeev Builders (supra), after analyzing the scope and ambit of Order 6 Rule 17 of CPC, the Honourable Apex Court held thus:
"71. Our final conclusions may be summed up thus:
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NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined 71.1. Order 2 Rule 2CPC 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 2 Rule 2CPC 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 6 Rule 17CPC.
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.
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do 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:
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NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined 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 mala fide, 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 separately for decision. Page 12 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025
NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined 71.10. 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 must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11. Where the amendment is sought before 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 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. (See Vijay Gupta v.
Gagninder Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi,2022 SCCOnLineDel 1897] .)"
(emphasis supplied)
16. Thus, in view of the aforesaid peculiar facts and circumstances of the present case, this Court is of the view that the impugned order passed by the Trial Court is not sustainable in law, inasmuch as it is contrary to the settled legal position of law. It is now well settled that pre-trial amendment should be liberally Page 13 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined granted unless falls in any of exception so carved out in aforesaid decision.
17. It is now well-settled legal position of law that whenever there is any order passed by the Trial Court is either erroneous, perverse, arbitrary, or contrary to law, this Court can always exercise its supervisory jurisdiction under Article 227 of the Constitution of India. [See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)].
18. In view of the foregoing discussion and reasons, the impugned order dated 10th January 2014 passed by the Principal Senior Civil Judge, Mehsana, below Exhibit 14 in Regular Civil Suit No. 79/2013, is hereby quashed and set aside. Accordingly, the impugned amendment application filed below Exhibit 14 in the aforesaid suit is hereby allowed.
19. The plaintiffs are hereby directed to submit an amended copy of the plaint/injunction application, if any, within 3 weeks from the date of receipt of the copy of this order. It goes without saying that on receiving such amended copy, the defendants Page 14 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025 NEUTRAL CITATION C/SCA/4342/2014 JUDGMENT DATED: 24/09/2025 undefined also entitled to file an additional written statement against such amended plaint.
20. The trial Court shall decide the lis between the parties in accordance with law, without being influenced by any of aforesaid observations made by this Court herein above and or made by trial Court itself while passing impugned order, which it otherwise quashed.
21. In view of the aforesaid conclusions, the present writ application is hereby allowed to the aforesaid extent. Rule made absolute accordingly. Interim relief stands vacated forthwith. No order as to costs.
(MAULIK J.SHELAT,J) Nilesh Page 15 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Sep 25 2025 Downloaded on : Thu Sep 25 22:41:38 IST 2025