Urmilaben Bhogilalbhai Rajput ... vs Padmaben D/O Parshottambhai ...
2021 Latest Caselaw 15658 Guj

    C/SCA/14775/2021                                ORDER DATED: 05/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 14775 of 2021

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URMILABEN BHOGILALBHAI RAJPUT D/O HARISHBHAI NAROTTAMBHAI
                          Versus
  PADMABEN D/O PARSHOTTAMBHAI KANJIBHAI W/O SHANTILAL
                        JAMNADAS
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Appearance:
MR S M KIKANI(7596) for the Petitioner(s) No. 1,2
 for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,62,7,8,9
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 05/10/2021

                              ORAL ORDER

By preferring present petition, petitioners have prayed following relief:

(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 30.07.2021 & 21.09.2021 passed below Exh.84 by the Ld. 2nd Additional Senior Civil Judge, Surat in Special Civil Suit No.426 of 2016 as being unjust, unreasonable and against the settled legal principle and further be pleased to allow the prayers sought for in the application preferred below Ex. 84 in Special Civil Suit No.426 of 2016, in the interest of justice; (B) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned order dated 30.07.2021 & 21.09.2021 passed below Exh.84 by the Ld. 2

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Additional Senior Civil Judge, Surat in Special Civil Suit No.426 of 2016, pending the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS be pleased to stay the further proceedings of Special Civil Suit No.426 of 2016 pending in the court of Ld. 2" Additional Senior Civil Judge, Surat, pending the admission, hearing and final disposal of this petition; (D) YOUR LORDSHIPS be pleased to dispense with the filing of affidavit in support of present petition at present as well be submitted in due course, in the interest of justice; (E) YOUR LORDSHIPS be pleased to grant such other and further reliefs as deemed fit in the interest of justice.

Brief facts of leading present petition are as under:

That, the petitioners as well as respondent no. 1 to 43 herein, i.e. original defendant no.1 to 43 are the legal heirs of original owner namely Kanjibhai Bhikhabhai. The respondent no. 44 to 62 are the so-call purchasers of subject land. That, as soon as petitioners came to know about sale transactions of land in question on 10.02.2016, the petitioners herein have filed suit being Special Civil Suit No 426/2016 along with Ex.5 application before Ld. Additional Senior Civil Judge, Surat for declaration and injunction as well as setting aside of sale deeds against the respondent no. 1 to 59 herein. That the petitioners, in their plaint at para-11 (cause of action para) had categorically stated that lastly, the petitioners got copy of 7/12

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extract along with copy of enterires of the land in question only on 10.02.2016 and thereafter suit was filed wherein all defendants were served and suit was proceed further wherein after service of summonses to all the defendants, the issues were framed and evidence of petitioners was started. That, recently, the suit was come up at the stage of additional evidence of petitioners, and therefore, on 22.07.2021, the petitioners applied for latest 7/12 abstract of land in question, whereby only petitioners came to know that respondent no.58 to 59 herein had already sold the land in question in favour of respondent no.60 to 62 herein by so-call registered sale deed on 03.12.2015 and said facts were not brought on record by the respondent no.58-59 though they were served. Therefore, immediately, on 30.07.2021, the petitioners moved an application for amendment of plaint including joining the respondent no.60 to 62 in the suit as defendants by filing an application below Exh.84 which was initially heard by the Ld. Judge on 30.07.2021 and thereafter same was kept for further hearing/explanation of petitioners on 10.08.2021. Therefore on 23.08.2021, the petitioners filed their explanation as sought by the Ld. Judge vide Exh.88 and thereby had explained all the facts and circumstances in details. The petitioners had also cited judgments of this Hon'ble court as well as of Hon'ble Apex court. However, without considering the explanation

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given by the petitioners and without considering the ratio of cited judgments, the Ld. Judge, vide its impugned order, rejected the application of petitioners with cost of Rs.20,000/and also ordered that in case of default of payment of cost, suit would be dismissed. Thus, being aggrieved by the impugned order dated 30.07.2021 & 21.09.2021 passed below Exh.84 by the Ld. 2nd Additional Senior Civil Judge, Surat in Special Civil Suit No.426 of 2016, the petitioners have filed present petition.

Heard learned advocate for the petitioners.

It was submitted by learned advocate for the petitioners that the order passed by the Ld. Judge is unjust, contrary to the facts, circumstances and evidence on record and against the provisions of law. That, while passing the impugned order, Ld. Judge failed to consider the facts emerging on record which clearly reveals that petitioners were never aware about factum of execution of sale deed by the respondent no.58 to 59 herein in favor of respondent no.60 to 62. In fact, though respondent no.58 to 59 were served with summons in the suit, they never come forward to disclose the fact that they had already transferred the suit properties. Further, even when petitioners initially applied and got 7/12 abstract on 10.02.2016, then also record did not show any such transaction and therefore petitioners could never come to know. Therefore with all due

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diligence, the petitioners had acted in bonafied manner and soon they came to know about factum of sale deed, they moved an application. However, ignoring these vital aspects, Ld. Judge passed the impugned order in a very haste manner prejudicial and detrimental to the legal rights and interest of the petitioners. That, the impugned order of Ld. Judge observing that citing judgments are not applicable to the facts of the present case. It is submitted that rejecting the application of petitioners on the ground that application of petitioners was at belated stage and same is barred by law of limitation is illegal. That, learned Judge ought to have appreciate the legal position as enumerated by the Hon'ble Apex Court in case of Pankaja Versus Yellappa (D) By Lrs, reported in 2004 (6) SCC 415. That, the petitioners state that the amendment sought by the petitioners are not changing the nature of the suit nor it is unfair. Even it is not findings of Ld. Judge that amendment as asked by the petitioners is amount to change the nature of suit. That, the Ld. Judge ought to have allowed the application of the petitioners for securing the proper administration of justice. That, this Hon'ble Court and the Hon'ble Apex court in catena of decisions have consistently held that the Rules of procedure are intended to be a handmaid to the administration of justice and a party cannot be refused a just relief because of some mistake, negligence, inadvertence or even infractions of the

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rules of the procedure. It was the specific case of the petitioners that because of petitioners are residing at Mumbai and since they are residing far from the land in question, they never applied for record of land in question after 10.02.2016. However, only recently when additional evidence is to be produced, they applied for the revenue record and thereby come to know about factum of execution of sale deed. Thus, the act of the learned Judge in dismissing the application of the petitioners amounts to miscarriage of justice. That, the Ld. Judge has erred in rejecting the application of the petitioners for making amendment in the memo of plaint, the Ld. Judge has completely ignored the provision for amendment of pleadings. That, it is time and again observed by this Hon'ble Court in catena of decisions that the power to allow amendment should be liberally exercised. The liberal principles which guides the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided. That amendments does not totally alter the character of an action, that no injustice and prejudice of an irremediable character are inflicted upon the opposite party under pretense of amendment. It is submitted that to curtail multiplicity of proceedings, petitioners preferred an application for amendment. The impugned order rejecting the application of petitioners is arbitrary. That, Ld. Judge ought to have

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considered the factual background as stated in the memo of application at Exh.84 as also in their explanation at Exh.88. That, Ld. Judge has ignored the vital facts of law and fact as well as several judicial pronouncements of this Hon'ble Court as well as the Hon'ble Apex Court while dismissing the application of the petitioners. In support of his arguments, learned advocate for the petitioners has placed his reliance on the following judgments;

1. Pankaja Versus Yellappa (D)By Lrs. reported in 2004(6) SCC 415

2. B. K. N. Pillia versus P. Pillai reported in 2000 (1) SCC

Ultimately, learned advocate for the petitioners has requested to allow present petition.

Having heard learned advocate for the petitioners and documents produced on record, it appears that two different orders were passed by the court below while deciding application Ex. 24 preferred by the present petitioners. On 30 th July 2021, learned Court below ordered the learned advocate for the plaintiffs to file written explanation for the discussion made in the order on or before the 10 th August 2021. From the discussion made by the court below, it was concluded that the amendment sought for by the petitioner was time barred and was hit by the provisions of the Limitation Act, and therefore,

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application was liable to be rejected. Thereafter, the court opined that if an application is directed to be rejected then it will bring the administrative complaint against the court and court would have to explain its judicial order under the administrative remarks. It was further observed that in CC No. 15030/2006, an advocate Mr. xxx , who was the witness in that case has given open threat to the court and still court has to pass one whole year at the station, and therefore, such application was not rejected straightway and order was passed to file written explanation by learned advocate for the plaintiffs. The second order was passed by rejecting the said application Ex. 84 on 21st September 2021 with the payment of cost worth of Rs. 20,000/- to the Taluka Legal Services Authority, Surat within seven days. Considering two different orders passed by the court below, while disposing an application Exh. 84, this court may not disturb the findings arrived at by the court below in dismissing the application preferred under Section 6 Rule 17 of the Code of Civil Procedure. That, undisputedly, registered sale deed was executed on 3rd December 2015 by the defendants no. 58 to 59 in favour of the proposed defendants No. 60 to 62.

The Civil suit was filed on 6th September 2016 and application Exh. 84 was preferred on 13th July 2021 after 5 years and 7 months after the date of registration of the sale

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deed and after 3 years and 10 months from the date of filing of the suit. It appears that the date of the registration of the sale deed would be material, which will be treated as deemed notice for the purpose of leading their right over the properties. However, the court below concluded that the prayer made by the petitioner was time barred under the Limitation Act, there was no necessity to call for any explanation of the learned advocate appearing for the plaintiff in writing.

In case of Pankaja Versus Yellappa (D)By Lrs. reported in 2004(6) SCC 415, it is held by Hon'ble Supreme Court that:

"5. In the written statement filed by the respondents, a contention was taken that a suit for injunction and possession without seeking a declaration of title was not maintainable. Written statement was filed on 17th September, 1994. On 27th of July, 2000 realizing that a prayer for declaration on the facts of the case was essential the appellants filed an application for amendment of the plaint under Order 6 Rule 17, CPC by adding the following prayers :-"[a] To declare that the Plaintiffs are the owners A1.B.M.N.N1.O1.O.L of the suit schedule property."

11. Mr. Girish Ananthamurthy, learned counsel appearing for the respondents-defendants strongly supported the impugned orders of the two courts below. He submitted that though the suit in question was filed as far back as on 11-7-1994 and the original defendant had in his written statement filed on 17-9-

1994 disputed the title of the appellants. Even then the appellants application for amendment of the suit incorporating the prayer for possession was filed only on 27-7-2000 nearly 6 years after the institution of the suit. He further contended that in view of Entry 58 of the Schedule to the Limitation Act, 1963 a suit for

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declaration could have been instituted only within 3 years when the right to sue accrued to the appellants and the said right having accrued as far back as in the year 1994, an amendment seeking a declaratory prayer after 6 years thereafter is clearly barred by the provision of the Limitation Act and the respondents having accrued a statutory right the same could not have been defeated by allowing an amendment filed beyond the statutory period of limitation.

12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the court to allow applications in spite of the delay and latches in moving such amendment application.

14. The law in this regard is also quite clear and consistent 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. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in 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 litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

16. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. 2004 (3) SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that

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the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice.

18. We think that the course adopted by this Court in Ragu Thilak D. John's case (supra) applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendments sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendments sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief."

In case of B. K. N. Pillia versus P. Pillai reported in 2000

(1) SCC 712, Hon'ble Supreme Court has held as under:

3. The-purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are

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allowed in the pleadings to avoid uncalled for multiplicity of litigation.

4.. ...The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred: Weldon v. Neale (1887) 19 QBD 394. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation."

No reasons are assigned by the court below in imposing the cost of Rs. 20,000/- to be paid by the petitioners/plaintiffs. The parties in the suit can apply for amendment of the pleadings in the plaint as prayed by the present case at any stage. There was no necessity to impose cost of Rs. 20,000/- as per the order passed by the court below. There was no misuse of the court process on the part of the present petitioners as the suit itself was filed in the year 2016. It was averred in the application Ex. 84 that as and when the plaintiffs came to know in respect of the registration of the sale deed, they immediately applied for certified copy of the sale deed, which was available to them on 22nd July 2021. Apart from it, conclusion of the court below and the reasons assigned for rejection of the application Ex. 84, according to this Court, calling explanation of the learned advocate appearing for the plaintiffs in writing as well as imposing cost of Rs. 20,000/-

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are illegal and erroneous, and therefore, this part of the order passed by the court below requires to be quashed and set aside.

Accordingly, present petition is hereby partly allowed. The impugned orders dated 30.07.2021 & 21.09.2021 passed below Exh.84 by the Learned 2nd Additional Senior Civil Judge, Surat in Special Civil Suit No.426 of 2016 stand quashed and set aside to the aforesaid extent and rest part of such impugned orders shall not be disturbed by this Court.

(B.N. KARIA, J) K. S. DARJI