Lhs Of Decd. Thakkar Hasumatiben ... vs Thakkar Darshankumar ...
2021 Latest Caselaw 16497 Guj

      C/SCA/15805/2021                                 ORDER DATED: 21/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 15805 of 2021
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     LHS OF DECD. THAKKAR HASUMATIBEN D/O JAYANTILAL RATILAL
          SAHAYTA AND W/O NANALAL KUVERJIBHAI THAKKAR
                             Versus
             THAKKAR DARSHANKUMAR THAKARSINHBHAI
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,2
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5,2
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 21/10/2021
                   ORAL ORDER

1. By preferring this petition, the petitioners have

challenged the order 18.12.2019 passed below Exh.49 by the

learned Principal Senior Civil Judge, Deodar, Banaskantha in

Special Civil Suit No.7 of 2017 (original Special Civil Suit

No.87 of 2012), wherein the learned Court-below rejected the

application preferred by the plaintiffs below Exh.49 under

Order 6 Rule 17 of the Code of Civil Procedure, 1908.

2. Heard learned advocate for the petitioners.

3. It is submitted by learned advocate for the petitioners

that the learned Trial Court has committed an error in

rejecting the application under Exh.49 under the provisions

of Order 6 Rule 17 for amendment of plaint. It is further

submitted that the provisions of Order 2 Rule 2 of the CPC

C/SCA/15805/2021 ORDER DATED: 21/10/2021

would not apply in the facts of the present case as the prayer

was made by the petitioners to recover remaining unpaid sale

consideration arising from the same agreement to sell, from

the respondents - defendants of Rs.6,07,56,138/-. It is further

submitted by learned advocate for the petitioners that it was a

consequential relief in the suit to cancel the agreement to sell

and observations of the learned Trial Court that amendment of

the plaint would change the nature of the suit was contrary to

the facts and law. It is further submitted that the findings of

the learned Trial Court that the suit was pending for recording

the evidence was not correct as the issues were framed on

28.06.2016 below Exh.51 and this application Exh.49 was

preferred for framing the issues. In support of his arguments,

learned advocate for the petitioners has relied upon the

judgment in the case of Chimanlal Ambalal Vs. Shah

Hasmukhlal and another reported in AIR 1976 Gujarat 60.

4. Notice, returnable on 16.12.2021.

5. Operation of the order below Exh.49 dated 18.12.2019

shall be suspended till the next date of hearing.

(B.N. KARIA, J) rakesh/