Vasantlal Thakorda Mali vs Atulbhai Chotubhai Desai
2021 Latest Caselaw 1982 Guj

       C/SCA/5091/2018                                  JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 5091 of 2018

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 ?

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                 VASANTLAL THAKORDA MALI
                             Versus
           ATULBHAI CHOTUBHAI DESAI & 8 other(s)
=======================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR.KRUTARTH K PANDYA(7092) for the Petitioner(s) No. 1
MR ARPIT KAPADIA for MS. SHAILI A KAPADIA(3453) for the
Respondent(s) No. 1,2,3,4,6,7
NOTICE SERVED(4) for the Respondent(s) No. 5,8,9
=======================================

CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 10/02/2021

                         ORAL JUDGMENT

1. Present petition under Articles 14, 21, 226 and 227 of the Constitution of India is preferred by the petitioner - original plaintiff with a prayer to issue a writ of certiorari or a writ in the

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nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 21.12.2017, passed by the learned Principal Senior Civil Judge and Chief Judicial Magistrate, Bardoli, below exh. 75 in Regular Civil Suit No. 42 of 2010 and further to allow the amendment application, exh.

75.

2. Notice to respondent Nos. 5, 8 and 9 has been duly served long back, however, none has appeared for them.

3. Rule. Learned advocate Mr. Arpit Kapadia for learned advocate Ms. Shaili Kapadia waives service for the respondent Nos. 1, 2, 3, 4, 6 and 7. With the consent of the learned advocates for the parties present, the matter is taken up for final hearing today.

4. Facts in nutshell of the case on hand are that the petitioner

- original plaintiff instituted a civil suit for specific performance being Regular Civil Suit No. 42 of 2010 against the respondents - original defendants. It is the case of the petitioner - plaintiff that the dispute pertains to a land situated at revenue survey Nos. 78 and 80 of Taluka: Bardoli, Dist.: Surat. The land in question was in the name of original defendant Nos. 1 to 4 and the property in question i.e. Block Nos. 20, 21 and 22 of Mouje: Kharad, Dist.: Surat was in the name of original defendant Nos. 5 to 7. It is further the case of the petitioner that on 22.09.2009, the original defendants issued a soda chiththi in favour of the present petitioner against which, the petitioner also paid an amount of Rs.1,00,001/- as a token. It is submitted that thereafter, since the defendants did not remove the objections/defects prevailing on the land in question, aforesaid civil suit was filed by the

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petitioner praying for certain reliefs. That, during the pendency of the said suit, the original defendant Nos. 1 to 4 executed a sale deed of property situated at survey No. 80 of Taluka: Bardoli, Dist.: Surat to one Shri Bipinchandra Lakshmanbhai Saliya (HUF) and accordingly, when the petitioner came to know about the same, he filed an amendment application to implead the said purchaser as a party defendant No. 8 in the said civil suit, which came to be allowed by virtue of an order dated 30.08.2011. Thereafter, the petitioner also came to know that the original defendant Nos. 5 to 7 had also executed a registered sale deed No. 3144 dated 22.11.2011 of the property at survey Nos. 20, 21 and 22 of Mouje: Kharad, Dist.: Surat to one Champaben Nagjibhai Patel during the pendency of the suit and therefore, the petitioner preferred an application exh. 75 seeking amendment to that effect in the suit as also to implead the said purchaser in the suit in question. The said application, however, was rejected by the learned trial Judge by the impugned order dated 21.12.2017 and hence, this petition.

5. Heard, learned advocate Mr. S. P. Majmudar for the petitioner and learned advocate Mr. Arpit Kapadia for the respondent Nos. 1, 2, 3, 4, 6 and 7 through video conference.

5.1 Mr. Majmudar, learned advocate for the petitioner has vehemently and fervently argued that in the present case, the petitioner is the original plaintiff in the Regular Civil Suit No. 42 of 2010, which is filed for specific performance. It is submitted that during the pendency of the suit in question, the respective defendant Nos. 5 to 7 sold the suit property to a third party and hence, the petitioner gave an application for amendment in the suit to bring the said fact on record as well as to implead the

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subsequent purchaser as a party defendant in the suit in question, however, the learned trial Judge has rejected the said application without due appreciation of the facts and circumstances of the case. It is further submitted by the learned advocate for the petitioner that the learned trial Judge has observed that the plaintiff - petitioner herein has not given any specification and clarification as regards delay in filing the said application, however, the fact remains that the evidence is still pending and the trial Court can very well decide the said issue at this stage. It is submitted that in the absence of amendment, as sought for, decree may not be satisfied. The learned advocate for the petitioner submitted that as soon as the petitioner - plaintiff came to know about the subsequent sale, he moved the trial Court with the amendment application, however, the same is disallowed without proper application of mind and accordingly, it is urged that present petition may be allowed as prayed for by quashing and setting the impugned order and allowing the amendment as sought for.

5.2 In support of his submissions, the learned advocate for the petitioner has relied upon the decisions rendered by the Hon'ble Apex Court in the cases of: i) Chakreshwari Construction Pvt. Ltd. v. Manohar Lal, (2017) 5 SCC 212, ii) Mohinder Kumar Mehra v. Roop Rani Mehra and Others, (2018) 2 SCC 132 and iii) Pankaja and Another v. Yellappa (dead) by LRs. and Others, (2004) 6 SCC 415.

6. Per contra, learned advocate Mr. Kapadia for the respondent Nos. 1, 2, 3, 4, 6 and 7, while heavily opposing the present petition and supporting the impugned order, submitted that after due appreciation of facts and circumstances of the

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case, the learned trial Judge has passed the said order. It is submitted that the learned trial Judge has rightly observed that the petitioner - plaintiff has failed to show any specification and/or clarification for the delay that had been caused in filing the application for amendment and accordingly, has passed an order, which is just and proper. In support of his submissions, the learned advocate Mr. Kapadia has relied upon a reported decision of the Hon'ble Apex Court, rendered in Civil Appeal No. 7251 of 2008 (Arising out of SLP (Civil) No. 4740 of 2008, between Vidyabai & Others v. Padmalatha & Another, dated 12.12.2008. Mr. Kapadia has also relied upon a non- reported decision of the Hon'ble Apex Court, rendered in Civil Appeal No. 1669 of 2019 (Arising out of SLP (Civil) No. 19188 of 2010), between M. Revanna v. Anjanamma (dead) by LRs. & Others, dated 14.02.2019. Referring the above decisions, he submitted that copy of the the proceedings (rojkam) is on record and a bare perusal of the same reveals that the trial has already commenced and accordingly, when the trial is commended, in view of above O.6 R.17 of the CPC as well as the decisions of the Hon'ble Apex Court, amendment is not tenable. Further, so far as the aspect of limitation is concerned, he submitted that the sale deed in question was required to be challenged within three years, which is not the case here and accordingly, it is urged that, considering the totality of facts and circumstances of the case, present petition may not be entertained and requested to dismiss the same.

7. Having regard to the submissions advanced by the learned advocates for the parties present and perusing the impugned order dated 21.12.2017, it appears that the aspect of sale of the suit property during the pendency of the suit, as asserted by the

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petitioner - plaintiff, is not much contested by the respondents - defendants. On such sale being made, the petitioner - plaintiff had moved an application for amendment in the pending suit to place on record the subsequent event as well as to implead the subsequent purchaser as a party - defendant in the suit with a view to effectively decide the real question in controversy between the parties. In this regard, provisions of O.6 R.17 of the Civil Procedure Code, 1908 (CPC) are relevant and hence, extracted hereunder:

"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."

7.1 The case of learned advocate Mr. Kapadia for the respective respondents, precisely, is that as per the plain reading of aforesaid Rule 17 (of Order 6), no application for amendment shall be allowed after the trial has commenced. He submitted that considering the proceedings (rojkam) of the suit in question, it is apparent that the trial is commenced and hence, the learned trial Judge has rightly rejected the application for amendment. In the opinion of this Court, if the O.6, R.17 CPC is read as a whole, then, the same is divided in two parts viz. i) amendments may be made as may be necessary for the purpose of determining the real questions in controversy between the parties, however, no application for amendment shall be allowed after the trial has

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commenced and ii) 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, the Court may allow such amendments. Thus, when on one hand, while there is a check that no amendments shall be allowed after the trial has commenced, on the other hand, the Courts are vested with the powers to allow the amendments if a Court comes to the conclusion that same in spite of due diligence, the party could not have raised the matter before the commencement of trial. The case of the petitioner - plaintiff is that as soon as he came to know about the execution of sale deed, he moved the trial Court with amendment application so as to effectively decide controversy between the parties. It is nobody's case that the execution of sale deed in question has not been taken place during the pendency of lis. Accordingly, in the opinion of this Court, so as to decide the real controversy between the parties and to avoid multiplicity of proceedings, the amendments, as sought for, are necessary.

7.2 At this juncture, it would be apt to refer to the decisions relied upon by the learned advocate for the petitioner. In Chakreshwari Construction Private Limited (supra), the Hon'ble Apex Court has held that, following 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 fine or mala fide;

3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

        C/SCA/5091/2018                                 JUDGMENT



      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; and

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.

7.3 The above are some of the important factors which may be kept in mind while dealing with application filed under O.6 R. 17.

7.4 In Mohinder Kumar Mehra (supra), the Hon'ble Apex Court, in the facts and circumstances of the case, allowed the amendment, Head Note 'A' of the same reads as under:

"A. Civil Procedure Code, 1908 - Or. 6 R. 17 proviso - Proviso barring entertainment of application for amendment of pleadings after commencement of trial - Trial when commences.

After framing of issues, case was fixed for recording of evidence of plaintiff, but instead of producing evidence, plaintiff took adjournment and in meantime he filed application under R. 17 - Plaintiff led evidence thereafter - According to plaintiff, he led evidence even on amended pleadings - Held, amendment application deserved to be allowed."

7.5 In Pankaja and Another (supra) it is held that, there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. Since, the jurisdiction to allow or not allow an amendment is discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further

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litigation, the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

7.6 Now, in view of the aforesaid pronouncements of the Hon'ble Apex Court if the amendments sought for by the petitioner - plaintiff is seen, the petitioner has sought for to place on record the subsequent event of sale of the suit property as well as to implead the subsequent purchaser as a party - defendant in the said suit. It appears that the said amendments are imperative for proper and effective adjudication of the suit in question. Further, by way of such amendments, as it appears, the petitioner - plaintiff would get no undue benefits and accordingly, there appears no mala fides in filing such an application by the petitioner - plaintiff.

7.7 So far aspect of delay in filing of the application for amendment is concerned, it could be understood that law of Limitation and Condonation of Delay are two effective implementations in the quick disposal of cases and effective litigation. On the one hand if the law of limitation keeps a check on the pulling of cases and prescribes a time period within which the suit can be filed and the time available within which the person can get the remedy conveniently. The law of Condonation of Delay keeps the principle of natural justice alive and also states the fact that different people might have different problems and the same sentence or a singular rule may not apply to all of them in the same way. Thus it is essential to hear them and decide accordingly whether they fit in the criteria of the judgment or whether they deserve a second chance. The legislature has conferred the power to condone the delay by

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enacting Section 5 of the Limitation Act in order to do substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts.

7.8 Thus, considering the principles enumerated herein above, to be taken into consideration while dealing with an application for amendment, as well as the law of limitation and condonation of delay as well as the settled legal position and in the facts and circumstances of the case on hand, in the opinion of this Court, granting of amendment would subserve the purpose as well as would avoid multiplicity of proceedings.

7.9 Further, as per the doctrine of dominus litis, the plaintiff is the master of the suit and the trial Court appears to have overlooked the said aspect also.

7.10 This Court has also gone through the decisions relied upon by learned advocate Mr. Kapadia for respondent Nos. 1, 2, 3, 4, 6 and 7. In M. Revanna v. Anjanamma (dead) by LRs. & Others (supra), which is a non-reported judgment of 2019, the Hon'ble Apex Court has held that if the amendment application gets change in nature of the suit as well as the character of the suit, in that case, if the amendment is allowed, the same would lead to travesty of justice and therefore, ultimately, the Hon'ble Apex Court has disallowed the same. In the instant case, the facts and circumstances are totally different from that of the case before the Hon'ble Apex Court in the said non-reported judgment. Learned advocate Mr. Majmudar for the petitioner has relied upon

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a decision of the Hon'ble Apex Court in Chakreshwari Construction Pvt. Ltd. v. Manohar Lal, (2017) 5 SCC 212 (supra) as well as a decision rendered in Mohinder Kumar Mehra v. Roop Rani Mehra and Others, (2018) 2 SCC 132 (supra), observations made therein, are extracted in the preceding paragraph 7.2 and 7.4, respectively, of this judgment. Thus, in the given facts and circumstances, the decision relied upon by learned advocate Mr. Kapadia would not be helpful to the case of the respondent Nos. 1, 2, 3, 4, 6 and 7.

7.11 Mr. Kapadia has also relied upon a reported decision of the Hon'ble Apex Court in Vidyabai & Others v. Padmalatha & Another (supra) of 2008, wherein, the Hon'ble Apex Court has held that it is primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. The Hon'ble Apex Court further goes to observe that the question as to whether the documents should have been called for or not by the Court without there being the amended written statement before it may be considered afresh. This decision also is not helpful to the respondents in view of the different facts and circumstances of the case on hand vis-a-vis the case before the Hon'ble Apex Court.

7.12 It may be reiterated that the learned advocate for the petitioner has placed reliance upon reported decisions of 2017 and 2018, which are latest one in compare to the reported decision, relied by the learned advocate Mr. Kapadia for the respective respondents, which is of 2008.

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8. In the backdrop as aforesaid, present writ petition succeeds and is allowed accordingly. The order dated 21.12.2017 passed below exh. 57 in Regular Civil Suit No. 42 of 2010 by the learned Principal Senior Civil Judge and Chief Judicial Magistrate, Bardoli, is hereby set aside and the amendment, as sought for, by the petitioner - original plaintiff in the said suit, is hereby is allowed. Amendments be carried out accordingly and the trial Court concerned shall proceed with the suit accordingly, in accordance with law. Rule is made absolute accordingly with no order as to costs.

[ A. C. Joshi, J. ] hiren