Gujarat High Court
Bhavnaben Prakashbhai Patel vs Legal Heirs Of Deceased ... on 21 October, 2021
Bench: B.N. Karia
C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9554 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 3937 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9316 of 2016
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9316 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
==========================================================
BHAVNABEN PRAKASHBHAI PATEL
Versus
LEGAL HEIRS OF DECEASED JAYSHUKHBEN D/O THAKOREBHAI & 9
other(s)
==========================================================
Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MR AB MUNSHI(1238) for the Respondent(s) No. 2,3,4.1,5,6,7,8
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1.1,1.2,1.3,1.4
MS NIYATI B KATIRA(5095) for the Respondent(s) No. 1.1,1.2,1.3,1.4
NOTICE UNSERVED(8) for the Respondent(s) No. 10
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 4,9
==========================================================
C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021
CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 21/10/2021
1. Rule returnable forthwith. Learned advocate Mr. S.P.
Majmudar waives service of notice of rule for and on behalf of
respective respondents in Special Civil Application No.9554 of 2016
and Special Civil Application No.9316 of 2016. Learned advocate
Mr. A.B. Munshi waives service of notice of rule for and on behalf
of respective respondents in Special Civil Application No.9554 of
2016 and Special Civil Application No.3937 of 2013.
2. In the present three petitions, respective parties in the Special
Civil Suit No.127 of 2009 have challenged the legality and validity
of the order passed below Exh.8 as well as Exh.65 preferred under
Order 6 Rule 17 of the Code of Civil Procedure wherein application
Exh.8 was rejected by the court below vide order dated 16.02.2013
whereas Exh.65 was allowed by the Lower Court vide order dated
21.03.2016. Aggrieved parties have preferred three different
petitions before this Court challenging the same order passed below
Exh.8 and Exh.65. Original plaintiffs in Special Civil Suit No.127 of
2009 have preferred Special Civil Application No.3937 of 2013
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challenging the order passed below Exh.8 dated 16.02.2013 and
respective defendants in Special Civil Suit No.127 of 2009 have
challenged the order passed below Exh.65 dated 21.03.2016 by
preferring two Special Civil Application Nos.9554 of 2016 and 9316
of 2016. On a joint request being made by learned advocates
appearing for the respective parties to decide these three different
petitions preferred by the respective parties against the order passed
below Exh.8 and Exh.65 by the Trial Court in common Civil Suit
No. 127 of 2009. Hence, these petitions are simultaneously decided
by passing common order.
3. Short facts of the present case may be referred as under:
Special Civil Suit No. 127 of 2009 was filed by the plaintiffs,
who are the petitioners in Special Civil Application No. 3937 of
2013 against the defendants/respondents seeking prayer of their
share in the suit properties and sought partition, declaration and
permanent injunction. As per the case of the plaintiff in the suit, that
their family head and great grand father namely Manchharam
Narsinbhai Patel had passed away on 15.05.1979, who had two sons
namely Nagarbhai and Thakorebhai. Thakorebhai was also passed
away in the year -1942 and he had three daughters namely Liliben,
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Urmilaben and Jaysukhben. Jaysukhben also passed away in the
year-2008 and original plaintiffs and defendant No.9 have undivided
share in the suit property. The suit was filed by the plaintiffs on
27.03.2009. During the pendency of the suit, the plaintiffs filed one
application for amendment under Order 6 Rule 17 of the Code of
Civil Procedure, 1908 below Exh.8 on 11.07.2009. By virtue of the
amendment application, plaintiff wanted to include certain properties
in the schedule of the plaint and they have sought the said properties
to be included by virtue of Schedule-B. It was the case of the
plaintiff in the amendment application below Exh.8 that the said
properties were also purchased by the defendant Nos.3 and 4 from
the funds of HUF, in which the plaintiffs had share. Plaintiffs wanted
to include the properties on the ground that the said properties were
also deemed to be ancestral properties and plaintiffs are entitled to
share therein. The learned Trial Court, after hearing the respective
parties, was pleased to reject the application below Exh.8 vide order
dated 16.02.2013 on the ground that plaintiffs have not been able to
prove that the said properties were ancestral properties. Thereafter,
plaintiffs moved another application for amendment below Exh.65
on 25.03.2016 with a prayer to add certain other properties, which
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were not part of the earlier amendment application Exh.8. In the
application Exh.65, the plaintiffs contended that the said properties
have also been purchased from joint family funds and by selling the
properties, in which the plaintiffs had share and thus, they are
entitled to their share in the said ancestral properties mentioned in
the application Exh.65. After hearing the parties, the learned Judge
of the Trial Court vide order dated 21.03.2016 allowed the said
amendment application below Exh.65 wherein the plaintiffs wanted
to join Bhavnaben Prakashbhai Patel as a party because it was a
case of the plaintiffs that the said properties were purchased in her
name and the plaintiffs have share in the said properties. Against the
order passed below Exh.65, two Special Civil Application No.9554
of 2016 and 9316 of 2016 have been preferred by the respective
defendants before this Court and Special Civil Application No.3937
of 2013 has been preferred by the original plaintiffs being aggrieved
with the order passed below Exh.8 dated 16.02.2013.
4. Heard learned advocates appearing for the petitioner as well as
learned advocate appearing for the respondents.
5. Learned advocate appearing for the petitioner in Special Civil
Application No.3937 of 2013 has submitted in his arguments that the
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order passed below Exh.8 dated 16.02.2013, rejecting the application
for amendment is completely illegal and erroneous. It is further
submitted that as per the settled legal position, amendment of plaint
is required to be liberally construed and in present case, amendment
prayed by the plaintiffs in their application Exh.8 was required to be
decided the real controversy between the parties. That learned Trial
Court rejected the application Exh.8 only on the ground that
plaintiffs have not been able to prove that said properties are the
ancestral properties. It is further submitted that at the stage of
granting amendment application, court is not required to go into the
merits of the case. In the present case trial court by going into the
merits of the case has committed jurisdictional error while passing
the impugned order. It is further argued by learned advocate for the
petitioner that amendments sought by the petitioners are not going to
change the nature of the suit in any manner, but in fact it is necessary
to decide the partition suit, which must include all the properties on
which the plaintiffs are claiming their share. It is further submitted
that in the partition suit, even after passing the decree, Court has
power to allow the amendment application to include the properties
before final decree is passed. It is further submitted that not granting
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amendment as prayed by the plaintiffs in their application Exh.8
would mean that suit is not being decided in accordance with law.
5.1 While coming to Special Civil Application No.9554 of 2016
and 9316 of 2016, learned advocate appearing from the respondents
has submitted that the trial Court has rightly granted the amendment
application Exh.65 and no error of law has been committed while
passing the impugned order. It was further argued by learned
advocate that only objection was raised against the said application
Exh.65 by the petitioner, that said properties are not ancestral
properties and amendment would hit by Order 2 Rule 2 of the Code
of Civil Procedure, 1908. That the trial Court has rightly observed
while passing the order below Exh.65 that whether the properties are
the ancestral properties or not, it can not be decided at the stage of
granting amendment. It is further submitted that provisions of Order
2 Rule 2 of the Code of Civil Procedure, 1908 would not be
applicable to the facts of the present case, because in the present case
suit is still pending. It is further submitted that Order 2 Rule 2 of the
C.P.C. would apply to the subsequent suit only. It is further
submitted by learned advocate that in case Court has granted the
amendment prayed in their application Exh.65 then it would not
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change the nature of the suit as certain properties were left out in the
plaint and they can always be added at subsequent stage to decide
the real controversy between the parties. That by allowing the
application Exh.65 no prejudice would be caused to the original
defendants. That defendants wanted to prolong the proceedings
unnecessarily by raising frivolous objections to the grant of
amendment and the suit is delayed at their instance. It is further
submitted that amendment application below Exh.8 was not rejected
by the court below on the ground that it was barred by limitation,
and therefore, contention of the respondents at this stage that the
amendment application was barred by limitation cannot be
entertained. That in fact amendment prayed by the plaintiff in both
of the application Exh.8 and Exh.65 was not barred by limitation at
all. It is further submitted that reliefs prayed by the plaintiff was
within the period applicable for filing partition suit. It is further
submitted that application below Exh.65 was filed immediately after
the issues were framed and at the stage, when the evidence was not
started. It is further submitted that as the recording of evidence has
not been started in the suit, amendment cannot be refused under the
provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908.
C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021
That application Exh.65 was filed and parties were yet to lead their
evidence, and therefore, also said amendment was rightly allowed
by the Court. It is further submitted by learned advocate that all the
issues, including limitation can always be kept open, which can be
decided at the time of deciding the suit and such issues were not
required to be gone into while deciding the amendment application.
It is further submitted that Bhavnaben Prakashbhai Patel was
permitted to be joined as a party defendant No.10, as per the prayer
made in the amendment application below Exh.65, who is a family
member of the petitioners. That plaintiffs have dominus litis and
entitled to join parties in the suit who are necessary and proper
parties. That defendant No.10 i.e. Bhavnaben Prakasbhia Patel was
necessary and proper party as she is holding the property which have
been purchased by the defendants of the joint family properties and
she is also wife of the one of the family members of the plaintiffs,
and therefore, court below has rightly permitted to join defendant
No.10 as one of the defendants in the suit. In support of his argument
learned advocate has placed reliance upon the following judgments:
1. 1980 (5) SCC 537 (Para Nos.10-13) (2) 2001 (2) SCC 472 (Para
Nos.52-54), (3) 2006 (4) SCC 385 (Para Nos.31-45), (4) 2009 (2)
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SCC 562 (Para Nos.17-21), (5) 2009 (3) GLR 2565 = 2009 SCC
OnLine (Guj.) 7435 (Para Nos.24-30);, (6) 2014 (13) SCC 40
(Para Nos.17-21), (7) 2018 (2) SCC 87 (Para Nos.18-23), (8) 2018
(2) SCC 132, (9) 2018 (6) SCC 567 (Para Nos.6-17), and (10) 2018
(9) SCC 164.
5.2 It is further submitted by learned advocate for the petitioner
that amendment sought by the plaintiff was a bona fide only
because to bring certain properties, which was left out in the plaint.
It is further submitted that refusing to allow the amendment would in
fact leading to injustice and multiplicity of proceedings. Hence, it is
submitted by learned advocate appearing for petitioner/respondent to
allow Special Civil Application No.3937 of 2013 and dismiss
Special Civil Application No.9554 of 2016 and Special Civil
Application No.9316 of 2016.
6. Learned Senior Advocate appearing from the respondents in
Special Civil Application No.3937 of 2013 and petitioners in Special
Civil Application No.9316 of 2016 and Special Civil Application
No.9554 of 2016 has vehemently opposed the submissions made by
learned advocate appearing from the opposite side and submitted
that along with Special Civil Suit No.127 of 2009, plaintiff also filed
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an application for injunction below Exh.5 which came to be rejected
by Civil Court, Surat vide order datd 26.04.2013. It is further
submitted that during the pendency of the application for interim
relief Exh.5 preferred by the plaintiff, they moved an application
Exh.8 before the trial Court under Order 6 Rule 17 of Code of Civil
Procedure, 1908 seeking amendment that the original defendant
Nos.3 and 4 had purchased agricultural land at village Veluk, Sarol
and Narthana, Taluka-Olpad on 11.07.2009, That the said
application Exh.8 was rejected by the trial Court vide order dated
16.02.2013. That the original plaintiff while preferring Special Civil
Application No.3937 of 2013 before this Court, notice was issued on
21.10.2013 and by way of interim relief, this Court directed to stay
the implementation, execution and operation of the order passed
below Exh.8 on 21.10.2013. It is further submitted that being
dissatisfied with the order passed below Exh.5 rejecting application
for interim injunction of the plaintiffs, they moved an Appeal from
Order No. 451 of 2013 on 28.02.2016 before this Court. It is further
submitted by learned Senior Advocate that the said Appeal from
Order was withdrawn by the appellants/original plaintiffs and
alternatively prayed to expedite the hearing of this suit. That this
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Court was pleased to pass an order on 25.02.2016 directing trial
court to expedite the hearing of the suit i.e. S.C.S. No.127 of 2009
preferably within a period of one year. It is further submitted that in
order to frustrate the effect of the order passed below Exh.8 dated
16.02.2013, plaintiffs again preferred an application Exh.65 seeking
amendment of Smt. Bhavnaben Prakashbhai Patel alongwith others
as defendant in the suit and tried to incorporate the self acquired
properties of defendant No.4 namely Prakashbhai Yogeshbhai Patel
as suit property in the schedule of the plaint. It is further submitted
that erroneously, Trial Court vide order dated 21.05.2016 partly
allowed the application Exh.65 permitting to implead Bhavnaben as
party defendant No.10 and so far as prayer of proposed defendant
Nos.11 to 14 was rejected and also permitted to add the land of
village Kacholi in the schedule of the plaint. That being dissatisfied
with the impugned order passed below Exh.65, two petitions came to
be preferred being Special Civil Application No.9316 of 2016 by
defendant No.1 to 7 and so far operative part of the prayer with
respect to paragraph Nos.3 and 4 of the order passed below Exh.65
dated 21.05.2016, Special Civil Application No.9554 of 2016 was
filed by Bhavnaben Prakashbhai Patel inter alia challenging that part
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of the order whereby Bhavnaben was not concerned, she was
wrongly impleaded in the suit. It is further submitted that Special
Civil Application No.9316 of 2016 and Special Civil Application
No.3937 of 2013 came up for hearing before this Court on
31.01.2017 and this Court for the first time passed an order in
Special Civil Application No.3937 of 2013 stayed the further
proceeding of the civil suit. It was further submitted that it was the
duty of the petitioners of Special Civil Application No.3937 of 2013
to inform the Court about the expeditious hearing of the suit, as
order was passed in Appeal from Order while passing the order
dated 31.01.2017 in Special Civil Application No.3937 of 2013. It
is further submitted by learned Senior Advocate that there are two
conflicting orders passed by learned Trial Court. Once application
Exh.8 moved in the year- 2013 for amendment was rejected and
again in the year-2016, an amendment application to include another
property was allowed by the learned Trial Court by passing an order
below Exh.65. It is further submitted that as they are conflict with
each other, Special Civil Application No.3937 of 2013 is required to
be dismissed and Special Civil Application No.9316 of 2016 and
Special Civil Application No.9554 of 2016 are required to be
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allowed. It is further submitted that while allowing an application
Exh.65, trial court has committed serious error. Under the principles
of Order 2 Rule 2 of the Code of Civil Procedure, 1908 by way of
incorporation of the suit property to amend the plaint was absolutely
barred, and therefore, Special Civil Application No.9316 of 2016 is
required to be allowed and Special Civil Application No.3937 of
2013 is required to be dismissed. It is further submitted that from the
pedigree annexed by the respondents goes to show that the parties
are related to each other and or family members. It is difficult to
believe that original plaintiffs were not aware about said properties.
It is further submitted that they are conscious that the lands, which
are sought to be included by way of application Exh.8 and Exh.65,
are not ancestral property, and therefore, plaintiffs were stopped
from seeking to incorporate the said land as suit property. It is
further submitted that so far as the properties of an application
Exh.8, property of village Veluk is sold way back in the year-2005,
and therefore, defendant No.4 ceased to be an owner of the said
property, and therefore, also said property cannot be included in the
schedule of the plaint. It is further submitted by learned Senior
Advocate for the respondents that so far as property at Village Sarol
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is concerned, it was purchased by Bhavnaben wife of Prakashbhai
Patel and since she was not a party to the said proceedings, that
property cannot be included in the schedule to the plaint. It is further
submitted that so far as the property of Village-Narthana, defendant
No.4 had purchased the same way back in the year -1998, and
therefore, said property cannot form part of schedule of the plaint. It
is further submitted by learned Senior Advocate appearing for the
respondents that rejection of the application Exh.8 was a perfect
order, and therefore, Special Civil Application No.3937 of 2013 is
required to be rejected and consequently Special Civil Application
No.9316 of 2016 whereby including the land of village Kacholi is
uncalled, and therefore, Special Civil Application No.9316 of 2016
is required to be allowed. It is further submitted by learned advocate
appearing for the respondents that properties sought to be included
in the plaint by the original plaintiffs cannot be said to be ancestral
properties as the same were purchased even before filing of the suit.
The partition of the properties had occurred prior to filing of the suit
and therefore, no equitable relief can be granted to the petitioners
while adding the same in the schedule of the plaint. Learned
advocate for the respondents has distinguished the judgments relied
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upon by the plaintiffs and tried to convince the Court that they are
not applicable to the present case considering the facts and
circumstances of the present case. In support of his arguments,
learned advocate appearing for the respondents has relied upon the
judgments reported in 1980 (2) SCC 329, 1996 (1) SCC 90 and
2009 (10) SCC 84 as well as judgment of this Court passed in
Special Civil Application No.12040 of 2014 dated 31.03.2015
arguing that the said judgment is squarely applicable to the facts of
the present case. Ultimately it was requested by learned advocate
appearing for the respondents to dismiss Special Civil Application
No.3937 of 2013 and allow Special Civil Application No.9316 of
2016 and Special Civil Application No.9554 of 2016 as prayed by
them.
7. Having heard learned advocates appearing for the respective
parties as well as averments made in the Special Civil Suit No.127 of
2019 filed by the plaintiff, averments made in the application below
Exh.8 as well as Exh.65 preferred by the original plaintiffs under
Order 6 Rule 17 of the Code of Civil Procedure, 1908, objections
filed by the respective respondents against the application and
impugned orders dated 16.02.2013 as well as 25.03.2016 and rival
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contentions, first of all this court would like to refer the judgment
delivered in the case of S. Satnam Singh and Others v. Surender
Kaur and Another reported in 2009 (2) SCC 562, wherein Hon'ble
Apex Court has observed in Paragraph No.17 as under:
"Before adverting to the rival contentions of the
parties, it must be kept in mind the principle that ordinarily
a party should not be prejudiced by an act of court. It must
also furthermore be borne in mind that in a partition suit
where both the parties want partition, a defendant may also
be held to be a plaintiff. Ordinarily, a suit for partial
partition may not be entertained. When the parties have
brought on records by way of pleadings and/or other
material that apart from the property mentioned by the
plaintiff in his plaint, there are other properties which could
be a subject matter of a partition, the court would be
entitled to pass a decree even in relation thereto."
8. The Hon'ble Supreme Court in case of C.M.Vareekutty versus
C.M. Mathukutty reported in 1980 1 SCC 537, it was a partion suit
of the property wherein defendant denied to file a written statement
and contended that there was nothing further to be done in the suit
except to pass a preliminary decree for partition in terms of Exh. A-
10. The plaintiff, however, filed an application for amendment of the
plaint by substituting and new schedule of properties. In these new
schedule correct and fuller particulars were given of the properties
previously mentioned in the original plaint. The plaint was opposed
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by the defendant. The learned sub-ordinate Judge allowed the
amendment but High Court of Kerala allowed the revision petition
filed by the defendant and dismiss the application for amending the
plaint. The Hon'ble Supreme Court held as under:
"Before the High Court it was agreed that the
application under Section 34 of the Arbitration Act should
not be persued by the defendant, that the plaintiff should
give up his contest regarding the genuineness of Exhibit A-
10 and that the plaintiff was at liberty to raise the question
of the validity of Exhibit A-10 which was to be made an
issue in the suit itself. The order of stay granted by the
Trial Court was, therefore, set aside and the suit was
directed to be disposed of with the maximum expedition 'at
any rate up to the point of the preliminary decree'. It was
reiterated in the order of the High Court that the question
of genuineness of Exhibit A-10 was not to be made an
issue in the suit. The suit was to be tried on that footing.
Thereafter the suit was taken up by the learned
Subordinate Judge. The defendant declined to file a
written statement and contended that there was nothing
further to be done in the suit except to pass a preliminary
decree for partition in terms of Exhibit A-10. The plaintiff
however, filed an application for amendment of the plaint
by substituting a new schedule of properties. In this new
schedule fuller and correct particulars were given of the
properties previously mentioned in the original plaint, A
few new items were also included."
9. The Hon'ble Supreme Court in the case of Gurbakhsh Singh
and others versus Buta Singh and another reported in (2018) 6
SCC Page 567, appellant requested for setting aside the ex parte
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decree passed against the predecessor interest in Civil Suit No.195 of
1968. Record of suit in which ex parte decree was passed was not
traceable in a record room. The Hon'ble Apex Court in Paragraph
No.5 and 6 has observed as under:
"5. In the present case the record of Civil Suit No.195 of
1968 in which ex parte decree was passed on 30.06.1969 is
not traceable. In the circumstances, there could possibly be
some inability in obtaining correct particulars well in time
on part of the appellants. At the time when the application
for amendment was preferred, only two official witnesses
were examined. The nature of amendment as proposed
neither changes the character and nature of the suit nor
does it introduce any fresh ground. The High Court itself
was conscious that the amendment would not change the
nature of the suit. In the given circumstances, in our view,
the amendment ought to have been allowed. In any case it
could not have caused any prejudice to the defendants.
6. While allowing amendment of plaint, after amendment of
2002, this Court in circumstances similar to the present
case, in Abdul Rehman and Anr. Vs. Mohd Ruldu and
Ors.1, had observed: "
"11. The original provision was deleted by
Amendment Act 46 of 1999, however, it has again
been restored by Amendment Act 22 of 2002 but with
an added proviso to prevent application for
amendment being 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.
The above proviso, to some extent, curtails absolute
discretion to allow amendment at any stage. At
present, if application is filed after commencement of
trial, it has to be shown that in spite of due diligence,
it could not have been sought earlier. The object of the
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rule is that courts should try the merits of the case that
come before them and should, consequently, allow all
amendments that may be necessary for determining
the real question in controversy between the parties
provided it does not cause injustice or prejudice to the
other side. This Court, in a series of decisions has held
that the power to allow the amendment is wide and
can be exercised at any stage of the proceeding in the
interest of justice. The main purpose of allowing the
amendment is to minimise the litigation and the plea
that the relief sought by way of amendment was barred
by time is to be considered in the light of the facts and
circumstances of each case. The above principles have
been reiterated by this Court in J.Samuel & Others v.
Gattu Mahesh and Others and Rameshkumar Agarwal
v. Rajmala Exports (P) Ltd and Others. 3 Keeping the
above principles in mind, let us consider whether the
appellants have made out a case for amendment."
10. The Hon'ble Apex Court in the case of Raj Kumar Bhatia
versus Subhash Chander Bhatia reported in 2018 (2) Supreme
Court Cases 87, a suit for recovery of possession, arrears of damage
and mense profits was filed against the appellant on 11.10.2010. The
property in dispute was situated on the first floor at 1/6 Ramesh
Nagar, New Delhi. As per the case of the plaintiff that Deshraj
Bhatia acquired the lease hold rights on 13.02.1962. After his death,
his children are stated to have relinquished their rights and interest in
favour of the mother, Lajwanti Bhatia, she executed a will
bequathing the property to her son Ratan Lal Bhatia who stated to
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have become the exclusive owner of the property on her death. The
original plaintiff, Sharda Raj Bhatia was the widow of Ratanlal
Bhatia. The appellant was the son of Ratanlal Bhatia, who died in
contested. Written statement was also filed in the suit on 22.02.2003
by the appellant and according to him, respondent had exercised
undue influence in obtaining the deed of relinquishment and party
shall live together jointly even after the alleged relinquished made.
The appellant claimed that an oral understanding was arrived at by
which he was to occupy the first and second floor together with
terrace whereas the respondent was occupied the ground floor
exclusively and their mother was to live on the ground floor and or
with any of her sons, as she desires. The appellant filed a written
statement to amend the plaint which was opposed by the respondent.
The trial court allowed an application by an order dated 11.04.2016.
The Hon'ble Apex Court considering the peculiar facts of the case
before it observed in Paragraph No.12 as under :
"This being the position, the case which was sought to
be set up in the proposed amendment was an elaboration of
what was stated in the written statement. The High Court
has in the exercise of its jurisdiction under Article 227 of
the Constitution entered upon the merits of the case which
was sought to be set up by the appellant in the amendment.
This is impermissible. Whether an amendment should be
allowed is not dependent on whether the case which is
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proposed to be set up will eventually succeed at the trial. In
enquiring into merits, the High Court transgressed the
limitations on its jurisdiction under Article 227 In Sadhna
Lodh v National Insurance Company3, this Court has held
that the (2003) 3 SCC 524 supervisory jurisdiction
conferred on the High Court under Article 227is confined
only to see whether an inferior court or tribunal has
proceeded within the parameters of its jurisdiction. In the
exercise of its jurisdiction under Article 227, the High
Court does not act as an appellate court or tribunal and it
is not open to it to review or reassess the evidence upon
which the inferior court or tribunal has passed an order.
The Trial Court had in the considered exercise of its
jurisdiction allowed the amendment of the written
statement under Order 6 Rule 17 of the CPC. There was no
reason for the High Court to interfere under Article 227.
Allowing the amendment would not amount to the
withdrawal of an admission contained in the written
statement (as submitted by the respondent) since the
amendment sought to elaborate upon an existing defence.
It would also be necessary to note that it was on 21
September 2013 that an amendment of the plaint was
allowed by the Trial Court, following which the appellant
had filed a written statement to the amended plaint
incorporating its defence. The amendment would cause no
prejudice to the Plaintiff."
11. In the case of Mansukhlat Bachubhai Parmar versus State
of Gujarat and another cited in (2009) 50 (3) GLR Page 2565, this
Court has observed in Paragraph No.20 as under:
"The amendment sought to be incorporated in
the plaint is a factual one, necessitated by the
termination of the services of the petitioner, during
the pendency of the Suit. It cannot, therefore, be
said that the amendment sought for is not nature of
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the Suit. The provisions of Order VI, Rule 17
empower the Court to permit amendment of
pleadings, at any stage of the proceedings. The
question of delay, therefore, is not relevant. While
granting or refusing an amendment or alteration
of the pleadings, the factual position has to be kept
in mind. In the peculiar facts of the present case,
the amendment prayed for the by the petitioner is
necessary to determine the real question in
controversy between the parties, and can be
permitted at any stage of the proceedings as the
proviso to Order VI, Rule 17 is not applicable in
this case. Ultimately, the cause of substantial
justice within the bounds of law, should be
advanced and by a hyper technical approach not
resorted to, in a case of this nature."
12. The Hon'ble Supreme Court in the case of Rajesh Kumar
Aggarwal and others versus K.K. Modi and Others reported in
2006 4 SCC page 385, the Hon'ble Supreme Court held as under:
"The object of Order 6 Rule 17 is that the Courts
should try the merits of the case that come before
them and should, consequently, allow all amendments
that may be necessary for determining the real
question in controversy between the parties provided
it does not cause injustice or prejudice to the other
side. The rule of amendment is essentially a rule of
justice, equity and good conscience and the power of
amendment should be exercised in the larger interest
of doing full and complete justice to the parties before
the Court. The Court always gives leave to amend the
pleadings of a party unless it is satisfied that the party
applying was acting mala fide. The amendment to
pleading should be liberally allowed since procedural
obstacles ought not to impede the dispensation of
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justice. The Court should also take notice of
subsequent events in order to shorten the litigation, to
preserve and safeguard the rights of both parties and
to subserve the ends of justice.
19. While considering whether an application for
amendment should or should not be allowed, the
Court should not go into the correctness or falsity of
the case in the amendment. Likewise, it should not
record a finding on the merits of the amendment and
the merits of the amendment sought to be
incorporated by way of amendment are not to be
adjudged at the stage of allowing the prayer for
amendment. This cardinal principle has not been
followed by the High Court in the instant case."
13. The Hon'ble Apex Court in the case of Pankaja and another
versus Yellapa (dead) by Lrs. And others reported in (2004) 6 SCC
Page 415, Hon'ble Apex Court has held as under:
"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
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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 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.
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.
13. But the question for our consideration is whether in
cases where the delay has extinguished the right of the party
by virtue of expiry of the period of the period of limitation
prescribed in law, can the court in the exercise of its
discretion take away the right accrued to another party by
allowing such belated amendments."
14. The Hon'ble Apex Court in the case of Ragu Thilak D. John
versus S. Rayappan and others reported in (2001) 2 SCC 472, the
Hon'ble Apex Court has observed as under:
"If the aforesaid test is applied in the instant case, the
amendment sought could not be declined. The dominant
purpose of allowing the amendment is to minimize the
litigation. The plea that the relief sought by way of
amendment was barred by time is arguable in the
circumstances of the case, as is evident from the perusal of
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averments made in paras 8(a) to 8(f) of the plant which were
sought to be incorporated by way of amendment. We feel that
in the circumstances of the case the plea of limitation being
disputed could be made a subject matter of the issue after
allowing the amendment prayed for. "
15. The Hon'ble Apex Court in the case of P.K. Narayanan Raja
versus Ambika and another reported in (2018) 9 SCC Page 164,
plaintiffs and defendants were family members. Plaintiffs filed a suit
for declaration and injunction in respect of some of the family
properties, however, by way of same parties involving all family
properties including (properties part of an injunction suit) still
pending before the Trial Court. The Hon'ble Apex Court held as
under:
"Properties involved in this appeal should be part of
partition suit along with other properties-Respective
rights and claims of parties should be subject-matter of
single suit rather than two different suits- Therefore,
parties granted liberty to amend pleadings in partition
suit in respect of properties involved in injunction suit
so that trial court can decide rights of parties- All
judgments and decrees passed suit for injunction set
aside- Trial Court directed to frame additional issues,
if required and to permit parties to lead evidence in
respect of amended pleadings- Time-limit of one year
fixed for disposal of partition suit between parties."
16. In the case of Ram Sahai versus Ramanad and others
reported in (2004) 13 SCC 40, in a similar facts of the case, Hon'ble
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Apex Court as observed as under:
"The question whether the properties sought to be added are
the personal properties of the defendant and other third
parties and thus are not liable to be partitioned is not relevant
for considering application for amendment. We are also
unable to sustain the view of the High Court that the scope of
the litigation will stand enlarged by addition of more
properties. Adding more properties would not result in
changing the nature and character of the suit. The effect of
those properties standing in the name of the defendant and
other third parties would, of course, be examined on merit in
accordance with law by the trial court and on the facts of the
case when the suit is at the initial stage it cannot be made a
ground to reject the application for amendment, also bearing
in veiw the settled position that liberal approach is required to
be adopted in considering prayers of amendment of pleadings.
We, of course, express no opinion on the merits of the claim of
the respective parties."
17. Considering the settled legal position as observed above, now
we may come to factual aspect as the Special Civil Suit No.127 of
2009 was filed by the original plaintiff against the defendants for
declaration that the plaintiffs as the legal heirs of the Thakorebhai
Manchharam and have one half share in the suit property. During the
pendency of this Suit, they moved an application for amendment of
the plaint Exh.8 dated 16.02.2013 under Order 6 Rule 17 of the
Code of Civil Procedure, 1908, which was rejected. Real question in
controversy between the parties is partition of the ancestral property
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and it was the contention of the original plaintiffs that certain
properties were acquired by the original respondents from the
income generated from the ancestral properties. Such an amendment
sought by the plaintiff in their application Exh.8 would not prejudice
the rights of the original defendants or would change the basic nature
of the Special Civil Suit No.127 of 2009. It appears that before
passing the order below Exh.8, trial Court had not adduced any
evidence. It was specifically denied that the properties in question
were self acquired properties. As per the contention of the plaintiffs
that properties have been acquired from the income generated from
the ancestral property and hence they are entitled to a share. Court
cannot go into the merits of the case or observe in application for
amendment that property in question sought to be amended by the
plaintiff was a self acquired property of the defendants or plaintiff
failed to prove that it was an ancestral properties.
18. In a subsequent application Exh.65 for amendment to add
other certain properties in the schedule of the plaint and implead
Smt. Bhavnaben Prakashbhai Patel as defendant No.10, prayer was
allowed by the Court. Every person, who was any form of right or
interest in the property which is a suit property, is required to be
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added as a party to the suit. Smt. Bhavnaben Patel was mutated in
the record of the property situated at Jahangirabad, Block No.20/1
and 20/2 (suit properties) and she had accepted that her name was
mutated in the revenue record. There is no illegality committed by
the trial court in impleading Bhavnaben Patel as a defendant No.10
while allowing the application Exh.65. Under Order 6 Rule 17 of
Code of Civil Procedure, 1908, court has power to allow either
parties to amend their pleadings if such amendment does not
prejudice the right of the other part and also if such an amendment
does not change the basic nature of the controversy between the
parties. In an application Exh.8 preferred by the original plaintiff for
amendment of the plaint was for the addition of two properties
namely (1) Taluka-Olpad, Village-Veluk, Survey No.191/2, 191/3,
191/4 and Block No.279 and (2) Taluka-Olpad, Village- Sarol,
Survey Nos.25, 26, 27 and 28 and Block Nos.104 (3) Taluka-Olpad,
Village- Narthana Survey Nos.321/1, 318/1 and Block No. 335.
19. Another application moved by the plaintiffs at Exh.65 was for
impleadment of the parties namely Bhavnaben Patel as one of the
defendants alongwith three other people and adding the following
properties as suit properties i.e. Properties No. (1) Taluka-Gandevi,
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Village-Kacholi, Block Nos.759/Paiki-2 and 759/Paiki-3 (2) Taluka
-Gandevi, Village-Dhanori, Block No.396. From the contents of the
application Exh. 8 and Exh.65 preferred by the original plaintiffs in
the suit they prayed for amendment of the plaint. For addition of
different properties as suit properties and later was also upon
impleadment of parties.
20. Application to amend the plaint cannot be said to be barred by
Order 2 Rule 2 of the Code of Civil Procedure, 1908. Original suit
was filed by plaintiffs for the partition of the ancestral property, and
therefore, it was necessary to include all the concerned properties in
the suit. The properties in addition to the suit were requested to be
added as suit properties during the pendency of this suit, and
therefore, principle of Order 2 Rule 2 of Code of Civil Procedure,
1908 would not be applicable. Effect of the Order 2 Rule 2 of the
Code of Civil Procedure, is to bar a plaintiff who had earlier claimed
certain remedies with regard to cause of action from filing a second
suit with regard to other reliefs based on said cause of action. The
trial court has rightly allowed the application Exh.65 as nature of the
suit would never change. The property is an ancestral property or a
self acquired property can be decided during the course of the trial
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after leading evidence by the parties. At the stage of deciding the
application under Order 6 Rule 17 of the Civil Procedure Code,
1908, it is not necessary to decide the nature of the properties or
rights of the parties. In an order dated 21.05.2016, while deciding the
application Exh.65, trial Court has observed that there is no
secondary source of income for the defendant No.4 apart from
income from agriculture, which is not warranted.
21. It appears that after withdrawal of Appeal from Order by the
plaintiff from this Court, however time was fixed by the Court
(Hon'ble Mr. Justice R.D. Kothari) in Appeal from Order No.451 of
2013 to dispose of the suit expeditiously and preferably by
31.12.2016, time limit for deciding the suit was extended from time
to time.
22. From the record, this Court is of the view that if the certain
properties are left out in the plaint, they can always be added at
subsequent stage to decide the real controversy between the parties.
The rights of the defendants to give reply or filing written statement
as well as to lead their evidence to the amendment would always be
open in the suit. There would be no prejudice to the defendants, if
such amendment as prayed for by the plaintiff would be accepted.
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The question of limitation as observed by the trial court while
deciding an application for amendment below Exh.8 cannot be
entertained.
23. Indisputably in the suit, evidence was not started to be
recorded and before that, these two applications were submitted by
the plaintiffs. Issue including limitation would always be opened
which can be decided at the time of deciding the suit, considering the
facts of the present case.
24. In a case cited in 1980 2 SCC Page 329 relied upon by the
learned advocate for the original defendants wherein suit on enforce
rights of pre-emption decree by trial court was filed. Appellate Court
allowed the amendment application of vendee to amend the written
statement seeking to raise plea of limitation. Plaintiff gave an
application to amend plaint raising pleas of specific performance of
agreement to sell. Amendment sought by the plaintiff, was declined
by High Court and dismissed the suit on the ground of limitation.
Hon'ble Supreme Court held that plaintiffs sought amendment to get
out of bar of limitation, High court was justified in not allowing
plaintiffs amendment and dismissing the suit. Peculiar facts was
sought in the cited judgment wherein a compromise decree in a suit
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for partition (to which the appellant and respondent No.1 were
parties) conferred a right of pre emption on all the parties thereto
inasmuch as after allotting the different properties to them a
provision was made in the decree to the effect that if the plaintiffs or
the defendants wanted to sell the properties allotted to them, they
should sell the same amount themselves mutually.
25. The plaintiff had proceeded to claim damages from the
respondent after the said date meaning thereby after 25.09.1962 and
there was enough material for the High Court to come to conclusion
that possession of the property had been delivered by the first
respondent to the second respondent immediately after the document
had been executed with the result that under Article 10 of the first
schedule to the Limitation Act, 1908, the suit was barred. The facts
of the cited case would not be applicable, considering the facts of the
present case.
26. In a case cited in 1996 (1) SCC Page 90, as per the facts, truck
owner filed a suit for declaration that he is entitled to loss of truck,
but did not claim relief being a consequential relief of payment of
quantified amount. Application for amendment of plaint was filed by
the plaintiff to add the relief. The Supreme Court held that relief
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cannot be added as if had become time barred at that stage and
amendment of application was rejected. There cannot be any dispute
of giving the application for amendment holding time barred,
considering the facts of the present case.
27. In an order passed in Special Civil Application No.12040 of
2014 by this Court, in terms of Rule 2 Order 2 of Civil Procedure
Code, observed that plaintiffs are deemed to have relinquished, their
part of the claim, and therefore, barred from instituting a fresh suit in
respect of the additional claim in contravention of the provisions of
Order 2 Rule of Code and consequently the amendment is also
barred by provisions of Rule 2 of Order 2 of the Code as well as by
Limitation.
28. The Object of Rule 17 of C.P.C. is that, Court should try to
merits of the case that come before it and should consequently allow
amendments that may be necessary for determining the real question
in controversy between the parties provided it does not go in justice
or prejudice to the other side. Order 6 Rule 17 consists of two parts,
whereas the first part is discretionary (may) and leaves it to the court
to order amendment of pleading, the second party is imperative
(shall) and enjoins the Court to allow all amendments which are
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necessary for the purpose of determining the real question in
controversy between the parties. In view of this, since the cause of
action arose during the pendecny of this suit, proposed amendment
made in the application Exh.8 by the plaintiffs, was required to be
granted because the basic structure of the suit has not changed and
there was merely change in the nature of relief claimed. If it is
permissible for the plaintiffs to file an independent fresh suit, why
the same relief, which could be prayed for in the new suit, cannot be
permitted to be incorporated in the pending suit.
29. The real controversy test is the basic cordinal test and it is the
primary duty of the court to decide whether such an amendment is
necessary to decide the real dispute between the parties. If it is, the
amendment will be allowed, if it is not, the amendment will be
refused, on the contrary, the trial court, without deciding whether a
such an amendment is necessary, have expressed certain opinions
and entered into a discussion on merits of the amendment
application Exh.8. In cases like this, the Court should also take
notice of subsequent events order to in shorten the litigation to
preserve and safeguards the rights of both the parties and subserve
the ends of justice. It is settled by a catena of decisions of the
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Hon'ble Apex Court as well as this Court that rule of amendment is
essentially a rule of justice, equity and would conscious and the
power of amendment should be exercised in the larger interest of
doing full and complete justice to the parties before the Court.
30. This Court has already noticed the prayer in the plaint and the
application for amendment Application Exh.8 and Exh.65. In view
of the discussion as above, this Court is of the opinion that
amendment sought by the plaintiff was necessary for the purpose of
determining the real controversy between the parties. A reading of
the entire plaint and the prayer made thereunder and the proposed
amendment would go to show that there was no question of any
inconsistency with the case originally made out in the plaint.
31. The amendments sought for by the plaintiffs have become
necessary in view of the facts that the plaintiffs have claimed their
share of the suit property, which was said to be ancestral property.
Since the trial court has entered discussion into a correctness or
falsity of the case on merits in the amendment application Exh.8,
which was not warranted. This Court has no other option but to
interfere with the order passed by the trial Court below Exh.8 dated
16.02.2013. As there is no illegality committed by the Trial Court by
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partly allowing the application Exh.65 vide order dated 21.05.2016,
this may be confirmed.
32. Hence Special Civil Application No.3937 of 2013 is hereby
allowed, the prayer made in the application Exh.8 in Special Civil
Suit No.127 of 2009 shall be allowed. Interim relief, stands vacated
forthwith. Rule is made absolute in Special Civil Application
No.3937 of 2013.
33. Special Civil Application No.9316 of 2016 and Special Civil
Application No.9554 of 2016 shall be dismissed. Order dated
21.05.2016 passed below Exh.65 in Special Civil Suit No.127 of
2009 shall be confirmed. Rule is discharged in Special Civil
Application No.9316 of 2016 and Special Civil Application No.9554
of 2016.
34. It is made clear that this Court has not expressed any opinion
on the merits of the rival claims in amended plaint, written statement
and the issues, which are framed or likely to be framed. It is for both
parties to contest the suit on merits on the basis of the amended
plaint, written statement (SIC) and the issues now to be framed.
35. Considering the pendency of Special Civil Suit No.127 of
2009 since 11 years and more, learned Trial Judge will expedite the
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hearing of Special Civil Suit No.127 of 2009 and dispose of the
same on merits preferably within a period of 10 months from the
date of receipt of this order.
36. The parties shall cooperate in the proceedings of Special Civil
Suit No.127 of 2009. Meanwhile, if any, application is submitted
from either side, same shall be disposed of expeditiously.
(B.N. KARIA, J)
ORDER IN CIVIL APPLICATION No.1 OF 2018 in SPECIAL
CIVIL APPLICATION NO. 9316 of 2016
In view of the order passed in Special Civil Application
No.9316 of 2016, present civil application does not survive and
accordingly disposed of.
(B.N. KARIA, J)
SUYASH
