Pinakin Narendrabhai Patel vs Prafulkumar Chinubhai Amin
2021 Latest Caselaw 5024 Guj

       C/SCA/1290/2019                                  JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 1290 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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     Whether Reporters of Local Papers may be allowed
 1                                                                 NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                         YES

     Whether their Lordships wish to see the fair copy
 3                                                                 NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution             NO
   of India or any order made thereunder ?

=======================================
              PINAKIN NARENDRABHAI PATEL
                            Versus
              PRAFULKUMAR CHINUBHAI AMIN
=======================================
Appearance:
URMI H RAVAL(8361) for the Petitioner(s) No. 1,2
MR APURVA R KAPADIA(5012) for the Respondent(s) No. 1,2
=======================================

CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 05/04/2021

                         ORAL JUDGMENT

1. This petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 01.10.2018 passed below exh. 88 in Regular Civil Suit No. 157 of 2007 by the learned 2nd Additional Senior Civil Judge, Rajpipla, District: Narmada, whereby, the learned trial Judge was pleased to reject the application exh. 88, filed by the present petitioners - original

C/SCA/1290/2019 JUDGMENT

plaintiffs under O.6 R.17 Civil Procedure Code, 1908 (CPC) for amendment in the suit.

2. Facts in nutshell of the case on hand are that the petitioners - original plaintiffs have filed aforesaid suit for declaration and permanent injunction before the civil Court at Rajpipla in the year 2007. In the said they moved an application under O.6 R.17 of the CPC on 13.03.2018 for amendment of plaint, to precise, to add the prayer clause by inserting prayer 3- A, whereby, it was sought to be prayed that, 'the disputed land is in the possession of the plaintiffs and they cultivate the same and take the produces thereof, although, if the Hon'ble Court comes to a conclusion that the disputed land is in possession of the defendants, in that case, it is prayed to get the possession of the said land from the defendants and handover to the plaintiffs'. The said application came to be rejected by the learned trial Judge and hence, this petition.

3. Rule.

4. Heard, learned advocate Ms. Urmi Raval for the petitioners and learned advocate Mr. Apurva R. Kapadia for the respondents.

4.1 The learned advocate for the petitioners submitted that the order passed by the learned trial Court is illegal, perverse and against the settled position of law inasmuch as, the petitioners have filed the suit for declaration and permanent injunction for the suit property as also prayed to restrain the defendants from transferring the suit property on the basis of the false and fabricated power of attorney. It is submitted that the said power of attorney was in the possession of the defendants and hence, in

C/SCA/1290/2019 JUDGMENT

the year 2013, pending suit, the petitioners prayed before the learned trial Court to direct the defendants to produce the said power of attorney and accordingly, by virtue of an order dated 26.02.2018, the said power of attorney came on record. Thus, only in the year 2018, the petitioners - plaintiffs could lay their hands to the power of attorney, which was in the possession of the defendants only. It is further submitted that on going through the power of attorney, it came to the notice of the petitioners that the signature of their mother in the said power of attorney is forged and accordingly, they moved the application exh. 88 for amendment of plaint, however, the learned trial Judge, without appreciating the fact that the petitioners came to know about the same only after production of the power of attorney in 2018, rejected the said application. It is submitted that under the provisions of O.6 R.17 CPC there is no absolute bar for granting amendment after the trial has commenced and if the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial, the Court can permit such amendment, however, the learned trial Judge, without due appreciation of this position of law, has rejected the application filed by the petitioners - plaintiffs. It is submitted that allowing the application would not, in any way, change the nature of the suit, however, the learned trial Judge has failed to consider such aspect of the matter. Further, the learned advocate earlier representing the petitioners - plaintiffs before the trial Court, had filed the suit hastily, without ascertaining proper information from the plaintiffs - petitioners. Thus, making above submissions, it is prayed to allow the present writ petition and grant amendment as prayed for by setting aside the impugned order.

C/SCA/1290/2019 JUDGMENT

4.2 Per contra, the learned advocate for the respondents, while heavily opposing the present writ petition and supporting the impugned order, submitted that the order passed by the learned trial Judge is just, proper and after due application of mind. It is submitted that it may be that under O.6 R.17 CPC discretion is vested in the Court to allow amendment after commencement of trial but the said powers are required to be exercised judiciously and rarely and only if the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial. In the present case, the learned trial Court has specifically mentioned in the impugned order that no such case is made out by the petitioners - plaintiffs and accordingly, when, the trial Court has come to a specific finding, impugned order may not be interfered with and accordingly, it is urged that present writ petition may be dismissed.

5. Regard being had to the submissions advanced by the learned advocates for the respective parties and having gone through the papers available on record, it appears that the petitioners filed the application exh. 88 under O.6 R.17 CPC for amendment in prayer clause, as referred to herein above. It is the case of the petitioners that they, for the first time, had an access to the so-called power of attorney in the year 2018, by virtue of an order dated 26.02.2018 passed by the trial Court to produce the same and thereafter, they moved the application for amendment which are necessary and crucial. The learned trial Court rejected the said application on the ground that since the trial is commenced, no such amendment can be allowed. Further, the case of the petitioners - plaintiffs does not fall under the proviso to such rule.

          C/SCA/1290/2019                                 JUDGMENT




5.1     In this regard if the facts of the case are seen, the

petitioners - plaintiffs have filed the suit in the year 2007, which is based on the assertion of false and fabricated power of attorney of their late mother. Thus, the petitioners - plaintiffs were in very well know of existence of the power of attorney in question. Now, if the application of the petitioner for production of power of attorney by the defendants - respondents is seen, the same is filed in the year 2013 only i.e. after about more than 5 years of filing of the suit. Thus, when the suit of the plaintiffs - petitioners mainly rests upon the so-called power of attorney, they could have made such an application well in advance. Further, it is an undisputed fact that the trial has already commenced. If the provisions of O.6 R.17 CPC are referred to, the same certainly does not absolutely bar the Court concerned to allow such application after the trial is commenced, however, a check is put on such application under the proviso to such rule which speaks that unless the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial, in that case only, such application can be considered. Thus, the discretion vested in the Court should be exercised judiciously and not randomly. In the case on hand, the learned trial Court has rightly come to such conclusion that it is not a case where the party (plaintiffs), despite due diligence, could not raise the matter before the commencement of trial. Thus, in the considered opinion of this Court, this is not a fit case which requires interference at the hands of this Court.

6. The petition, therefore, fails and is dismissed accordingly. Rule is discharged with no order as to costs.

[ A. C. Joshi, J. ] hiren