Patel Bharatkumar Ishwarlal vs Mukeshbhai Khemchandbhai Patel
2021 Latest Caselaw 17233 Guj

     C/SCA/14809/2017                               JUDGMENT DATED: 16/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14809 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         PATEL BHARATKUMAR ISHWARLAL
                                     Versus
                        MUKESHBHAI KHEMCHANDBHAI PATEL
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Appearance:
MALAV M MULANI(8844) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 16/11/2021

                                ORAL JUDGMENT

1. Rule. Mr.Nishit P. Gandhi, learned advocate waives

service of notice of Rule for and on behalf of the respondent.

2. The petitioner, by preferring this petition under Articles

14, 19 and 21 of the Constitution of India as well as under the

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

provisions of the Code of Civil Procedure, 1973 (hereinafter

referred to as "the CPC" for short), has requested to quash and

set aside the order passed below Exh.13 by learned Additional

Civil Judge, Patan in Regular Civil Suit No.123 of 2015,

whereby the application for amendment preferred under Order

6 Rule 17 of the CPC was rejected.

3. Short facts of present case may be summarized as

under:

3.1 The petitioner, who was the original plaintiff, has filed

Regular Civil Suit No.123 of 2015 against the original

defendant - present respondent on 28.05.2015 for recovery of

sum of Rs.1,83,400/-. In the suit, summons was duly served

to the defendant on 13.10.2015. The defendant failed to file

written statement within a stipulated time, and therefore,

right to file written statement was closed by the Court. An

application Exh.11 was submitted by the defendant with a

prayer to reopen the right of the defendant to file written

statement, but same was rejected by the Court-below on

30.08.2016. The defendant approached this Court being

aggrieved by the order dated 30.08.2016 by way of Special

Civil Application No.16891 of 2016. This Court, vide order

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

dated 20.12.2016, quashed and set aside the order passed by

the Trial Court dated 30.08.2016 and directed the learned

Judge to decide the application Exh.11 afresh and pass

appropriate order. Ultimately, right to file written statement

was reopened by the Trial Court and defendant filed his

written statement along with certain documents. It is at that

point of time, after perusing the documents produced by the

respondent alognwith the written statement, as per the

statement of the plaintiff/petitioner, he came to know that the

defendant is a partner of a partnership firm viz. "M.K.

Infrastructure", which was involved in the development of the

scheme viz. "Vitthal Villa", and therefore, the plaintiff filed an

application Exh.13 for joining the firm along with its partner

as defendants under Order 6 Rule 17 of the CPC, which was

rejected by the Trial Court vide order dated 15.06.2017.

Hence, this petition.

4. Heard learned advocate for the petitioner as well as

learned advocate for the respondent.

5. Learned advocate appearing for the petitioner has

submitted that the suit for recovery of Rs.1,83,400/- was filed

against the defendant on 25.08.2015, wherein initially written

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

statement was not filed by the defendant and his right to file

written statement was closed by the Court. It is further

submitted that the defendant approached this Court by fixing

Special Civil Application No.16891 of 2016 which was allowed

vide order dated 20.12.2016, directing the Trial Court to

decide the application below Exh.11 afresh and pass

appropriate order. It is further submitted that right to file

written statement was reopened by the Trial Court and

ultimately, written statement was filed alnogwith certain

documents. It is further submitted that after perusing the

documents and the written statement filed by the defendant,

plaintiff came to know that respondent is a partner of a

partnership firm viz. "M.K. Infrastructure", which was involved

in the development of the scheme viz. "Vitthal Villa", and

therefore, plaintiff filed an application Exh.13 for joining the

firm along with its partner as defendants for deciding the

issues involved in the suit. It is further submitted that

rejecting the application by the Court-below is contrary to

provisions of Order 6 Rule 17 of the CPC. It is further

submitted that the Trial Court has not properly taken into

consideration of the provisions under Order 6 Rule 17 of the

CPC as the original defendant cannot run away from his

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

liability behind the curtain of the so-called partnership firm. It

is further submitted that the original defendant was the only

person who was dealing with the plaintiff for the purpose of

pest control treatment and therefore, the plaintiff was not

aware with the fact that the defendant was a partner of M.K.

firms and other partners are also incorporated in the firm.

Referring the documents at Page No.39, it is further submitted

that the names of the partners of "M.K. Infrastructure" were

clearly shown in the documents and therefore, all the

partners were necessary to decide the issue involved in the

suit. It is further submitted that approach of the Trial Court

should be liberal and not hyper-technical. That powers of the

amendment should be liberal to be exercised by the Court,

which the Trial Court has completely failed to consider the

prayer made by the petitioner/plaintiff in his application

Exh.13 and hence, it is requested by learned advocate for the

petitioner/plaintiff to allow this petition by quashing and

setting aside the impugned order passed below Exh.13 by

learned Additional Civil Judge, Patan in Regular Civil Suit

No.123 of 2015.

6. Per contra, learned advocate appearing for the

respondent, has supported the findings arrived at by the Trial

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

Court and argued that there is no illegality committed by the

Trial Court in rejecting the application Exh.13 preferred by the

plaintiff. It is further submitted that receipt of payment of

Rs.30,000/- was issued by "M.K. Infrastructure" in favour of

the plaintiff (Page-46) and the plaintiff was aware that the

partnership firm viz. "M.K. Infrastructure" was in existence,

however, the plaintiff did not take care to join the partnership

firm or the partners as the defendants in the suit preferred by

the plaintiff. That such an error cannot be corrected by filing

an amendment application under Order 6 Rule 17 of the CPC.

That proposed defendant nos.2 to 5 were not joined as

partners of the partnership firm by the plaintiff. That they are

joined in their personal capacity by the plaintiff in his

application Exh.13. It is further submitted that no grounds

were raised by the plaintiff in his application Exh.13 that the

plaintiff was not aware with the fact that proposed defendant

nos.2 to 5 were the partners of "M.K. Firms". It is further

submitted that such a permission cannot be granted at a

belated stage as sought by the plaintiff in his application

Exh.13. That the plaintiff cannot claim as a matter of right to

amend the plaint. As no error has been committed by the Trial

Court in rejecting the application Exh.13, learned advocate for

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

the respondent has requested to dismiss this petition by

confirming the order passed below Exh.13 dated 15.06.2017.

7. Having gone through the facts of the case and

submissions made by learned advocates for the respective

parties and perused the material on record, it appears that the

plaintiff filed the suit for recovery an amount of Rs.1,85,400/-

only which was numbered as Regular Civil Suit No.123 of

2015. It also appears that only defendant was Patel

Mukeshbhai Khemchandbhai and as per the submissions

made by learned advocate for the petitioner, suit was filed on

28.05.2015. It is not in dispute that the defendant failed to file

his written statement of the defendant within a stipulated

period of time, and therefore, right to file written statement

was closed by the Court. The defendant filed an application

below Exh.11 for reopening of rights to file written statement,

but the same was rejected vide order dated 30.08.2016. The

original defendant approached this Court by way of filing

Special Civil Application No.16891 of 2016 challenging the

order dated 30.08.2016 passed below Exh.11. This Court was

pleased to quash and set aside the order passed below Exh.11

vide order dated 20.12.2016 and directed the Trial Court to

decide the application below Exh.11 afresh and pass

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

appropriate order. Thereafter, the Trial Court permitted the

defendant to file written statement by reopening his right.

Accordingly, the written statement was filed by the defendant

on 16.07.2016 alongwith the certain documents. In the

written statement, it was specifically contended in Paragraph-

4 that the suit was barred because of non-joinder of the

necessary party. In Paragraph-11, it was contended that the

defendant and his wife Joshnaben were the owners of the land

situated in the sim of Matarvadi and after converting the land

into non-agricultural, to construct residential houses, one

agreement for development was executed with "M.K.

Infrastructure", partnership firm on 30.01.2012 and the work

to construct the houses was handed over to "M.K.

Infrastructure" partnership firm and its partners. It was

further contended in Paragraph-11 of the written statement

by the original defendant that as per his information, the

plaintiff requested the partner of "M.K. Infrastructure" for pest

control treatment in connection with 10 bunglows, the

partners of "M.K. Infrastructure" were not satisfied with the

work made by the plaintiff and paid Rs.30,000/- to the

plaintiff as per the demand. Receipt was also issued by "M.K.

Infrastructure", partnership firm, and thereafter, remaining

C/SCA/14809/2017 JUDGMENT DATED: 16/11/2021

work was completed through Mr.Bharatbhai Rana. An

agreement for development was also produced on record along

with the written statement filed by the defendant showing first

party viz. Patel Mukeshkumar Khemchandbhai, who was

original defendant in Regular Civil Suit No.123 of 2015, his

wife Patel Joshnaben Mukeshkumar and from second party,

"M.K. Infrastructure"partnership firm and its partners viz. (I)

Patel Mukeshkumar Khemchandbhai, who is the original

defendant in the suit and (II) Patel Joshnaben Mukeshkumar -

wife of the defendant. Application Exh.13 was preferred by the

original plaintiff on 01.08.2016 before framing the issues

before the Trial Court or recording any evidence from the

plaintiff side. It was clearly mentioned in the application that

due to lack of knowledge of the partnership firm i.e. "M.K.

Infrastructure" and its partners, they were not joined as

defendants in the suit. From the written statement, for the

first time, the plaintiff came to know that the defendant was

the partner as well as his wife in the partnership firm "M.K.

Infrastructure". The documentary list produced also clearly

shows that one agreement of development was executed

between the parties i.e. the defendant and his wife. From one

side, both husband and wife were the parties and from other

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side, they were the partners of "M.K. Infrastructure"

partnership firm. No other partners are shown in the

agreement of development produced along with the written

statement.

8. Considering the facts and issues involved in the present

case, this Court is of the view that in absence of allowing the

amendment sought by the plaintiff in his application Exh.13,

there are bound to be multiplicity of the proceedings and that

can never be the aim of the statute. At the time of allowing the

amendment application, the Court is not required to go into

the merits of the case. The object of this provision to be

essentially on the statute book, is to minimize or avoid the

multiplicity of the proceedings and settle the entire dispute

existing by and between the parties. It would be necessary for

the Courts to allow, as per this provision, the amendment at

any stage of proceedings, if the same is found necessary for

determining the real question in controversy as long as it does

not alter the very basic structure of the suit nor should the

same prejudice the interest of the other side. The very

provision of Civil Procedure Code states that the amendment

can be carried out at any stage and more particularly the pre-

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trial stage. Plethora of judgments also interpreted this

provision to hold that there is no time prescribed for bringing

amendment and the same can be allowed by the Court at any

stage, while keeping in mind the safeguards contemplated by

the statute and, thereafter amplified and clarified by the High

Courts.

9. Resultantly, order passed below Exh.13 rejecting the

application by the Trial Court dated 15.06.2017 is hereby

quashed and set aside and the prayer made in the application

at Exh.13 in Regular Civil Suit No.123 of 2015 shall be

allowed.

10. With the above observations present petition is hereby

allowed. Rule is made absolute accordingly.

(B.N. KARIA, J) rakesh/