Ramesh Devji Varsani vs Kesarbai Devji Patel
2023 Latest Caselaw 2787 Guj

      C/SCA/4858/2023                                       ORDER DATED: 06/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4858 of 2023

==========================================================
                              RAMESH DEVJI VARSANI
                                     Versus
                              KESARBAI DEVJI PATEL
==========================================================
Appearance:
MR ANKIT Y BACHANI(5424) for the Petitioner(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 1,2,3
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 06/04/2023
                                      ORAL ORDER

1. The present petition is filed under Article 227 of the

Constitution of India by challenging the order dated

30.09.2023 passed below Exh.57 application in Regular Civil

Suit No.438 of 2005 by the learned Principal Civil Judge,

Bhuj - Kachcha, whereby amending, sought in the plaint by

the plaintiff, is rejected.

2.1 Brief facts of the case are as such that the plaintiffs

have filed the suit by seeking prayers in the plaint that the

document, which is registered before the Sub-Registrar, is

required to be cancelled, and accordingly, petitioners have

sought declaration in the suit. The plaintiffs have specifically

averred in the suit that the land pertains to Village Sukhpar

admeasuring Revenue Survey No.754/1, 4.27 acre and the

land is now converted to non-agricultural land, which is

C/SCA/4858/2023 ORDER DATED: 06/04/2023

known as Ambikanagar-2 admeasuring total area of 18,900

sq.m. The petitioners, being heir of his father - deceased

Swadevji Kanji who has holding the said land, are entitled to

the share as total property in question. There are 8 heirs of

the deceased - Swadevji Kanji. The petitioners have prayed

that the sale deed executed on 17.12.1993, which is about

the suit property, is sought to be cancelled and also further

sought for partition of the property in question by parting

th portion of the land.

2.2 Thereafter, the suit is proceeded further for recording

evidence of plaintiffs as well as defendants. At that time, the

plaintiffs have filed application by seeking amendment in the

suit by saying that the property described in the suit is

shown as a property of Village Sukhpar where as per sale

deed, the property is situated at Bhuj, and therefore, it is

prayed that the such amendment can be allowed, which the

trial Court has rejected that application filed below Ex.57 by

holding that if the amendment, sought for, in the suit is

granted, which is at Revenue Survey No.754/1 of Village

Sukhpar then the property in question of the suit will also

change and accordingly the subject matter of the suit will

also changed.

2.3 Moreover, the Court has considered that the such

amendment is sought after the suit proceeding is proceeded

C/SCA/4858/2023 ORDER DATED: 06/04/2023

further i.e. after 17 years as the suit is filed in the year

2005 and amendment is sought in the year 2022 and

therefore, the Court has rejected the said application.

2.4 Being aggrieve aggrieved and dissatisfied with the

above, the present petition is filed.

3.1 Heard leaned advocate Mr. Ankit Y. Bachani for the

petitioners. He has submitted that impugned order passed by

the learned trial Court is highly erroneous, unjust and

improper. He has further submitted that the learned trial

Court has erroneously considered the pleadings of the parties

and more particularly, documentary evidence which is

annexed with the suit, wherein it is clearly mentioned that

the property, in question, which is challenged in the suit, is

of Bhuj, and therefore, amendment is required to be granted

by exercising the power under Order VI Rule 17 of the Code

of Civil Procedure, 1908. He has further submitted that the

amendment can be granted at any stage of time irrespective

of the time period spent, if the plaintiffs can make out the

case on merits. He has further submitted that the plaintiffs

cannot have any personal intention in committing such error

in describing the location of the property. He has further

submitted that such mistake is occurred due to typographical

error which is required to be amended in the larger interest

C/SCA/4858/2023 ORDER DATED: 06/04/2023

of justice. He has further submitted that if such amendment

is not granted, it will lead to the multiplicity of the

proceedings. He has further submitted that due to mistake on

the part of the lawyer in drafting the plaint, the party

should not suffer.

3.2 He has relied on the judgment of the Hon'ble Apex

Court in the case of Varun Pahwa Versus Renu Chaudhary

reported in AIR 2019 SC 1186, and has submitted that the

mistake of the counsel of the plaintiffs in drafting the plaint

by describing plaintiffs, which is inadvertent mistake on the

part of the counsel, cannot be refused merely because some

mistakes are inadvertence or even infraction on the rules of

procedure and in that case also, the Hon'ble Apex Court has

granted the prayer, and therefore, he has submitted that the

present petition is required to be allowed by exercising of

powers under Article 227 of the Constitution of India as the

learned trial Court has grossly erred in law as well as facts

which may cause great prejudice to the interests of the

present petitioners.

4. This matter is decided at the admission stage.

5.1 I have considered the submissions made at the Bar. I

have considered the judgment cited at the Bar. I have also

C/SCA/4858/2023 ORDER DATED: 06/04/2023

considered the impugned order passed by the trial Court,

whereby the trial Court has relied upon the judgments of the

Hon'ble Apex Court in the case of Pandit Malhari Mahale

Versus Monika Pandit Mahale and Others reported in (2020) 11 SCC 549 as well as Revajeetu Builders and Developers Versus Narayanaswamy And Sons and Others reported in (2009) 10 SCC 84. If the abovementioned judgments are referred wherein the proviso to Order VI Rule 17 of the Civil

Procedure Code is considered that due diligence of the party

is required to be considered by the Court and the Court has

to give the finding about the same while deciding the

application under Order VI Rule 17 of the C.P.C. Here, in

the present, identical situation has been arisen, and therefore,

it is fruitful to refer the judgments of the Hon'ble Apex

Court in the cases of (i) Pandit Malhari Mahale (supra),

more particularly, paras 6, 7 and 8 are relevant, which read

as follows:-

"6. From the evidence on record, it does appear that

evidence had begun and thereafter amendment application

was filed. Without their being any finding by the Court as

contemplated by Order VI Rule 16 proviso, the Court ought

not to have allowed the amendment.

7. In the present case, the Civil Judge has not returned

any finding that the Court is satisfied that in spite of due

C/SCA/4858/2023 ORDER DATED: 06/04/2023

diligence, the party could not have raised the matter before

the commencement of trial. In Vidyabai & Ors. v.

Padmalatha & Anr. [(2009) 2 SCC 409], this Court observed

in para 19 as under:

"19. It is primal duty of the Court to decide as to

whether such an amendment is necessary to decide

the real dispute between the parties. Only if such a

condition is fulfilled, the amendment is to be allowed.

However, proviso appended to Order 6 Rule 17 of the

Code restricts the power of the court. It puts an

embargo on exercise of its jurisdiction. The court's

jurisdiction in a case of this nature is limited. Thus

unless the jurisdictional fact, as envisaged therein, is

found to be existing, the court will have no

jurisdiction at all to allow the amendment of the

plaint."

8. There being no finding by the Court that the Court

is satisfied in spite of due diligence, the party could not

introduce amendment before commencement of the trial, the

order of the Trial Judge is unsustainable. The High Court

has not adverted to the above aspect of the matter. In view

of aforesaid, we allow the appeal and set aside the order of

the High Court as well as of the Civil Judge, the

amendment application stands dismissed."

(ii) Revajeetu Builders and Developers (supra), more

particularly, paras 39, 58, 59 and 63 are relevant, which

C/SCA/4858/2023 ORDER DATED: 06/04/2023

read as follows:

"39. The rule, however, is not a universal one and under

certain circumstances, such an amendment may be allowed

by the court notwithstanding the law of limitation. The fact

that the claim is barred by law of limitation is but one of

the factors to be taken into account by the court in

exercising the discretion as to whether the amendment

should be allowed or refused, but it does not affect the

power of the court if the amendment is required in the

interests of justice.

Whether amendment is necessary to decide real controversy:-

58. The first condition which must be satisfied before the

amendment can be allowed by the court is whether such

amendment is necessary for the determination of the real

question in controversy. If that condition is not satisfied, the

amendment cannot be allowed. This is the basic test which

should govern the courts' discretion in grant or refusal of

the amendment.

No prejudice or injustice to other party:-

59. The other important condition which should govern the

discretion of the Court is the potentiality of prejudice or

injustice which is likely to be caused to 22 (1981) 3 SCC

652 other side. Ordinarily, if other side is compensated by

costs, then there is no injustice but in practice hardly any

court grants actual costs to the opposite side. The Courts

have very wide discretion in the matter of amendment of

C/SCA/4858/2023 ORDER DATED: 06/04/2023

pleadings but court's powers must be exercised judiciously

and with great care.

63. On critically analyzing both the English and Indian

cases, some basic principles emerge which ought to be taken

into consideration while allowing or rejecting the application

for amendment:

(1) Whether the amendment sought is imperative for

proper and effective adjudication of the case?

(2) Whether the application for amendment is bona

fide or mala fide;

(3) The amendment should not cause such prejudice

to the other side which cannot be compensated

adequately in terms of money;

(4) Refusing amendment would in fact

lead to injustice or lead to multiple litigation;

          5)       Whether the proposed amendment constitutionally

          or       fundamentally changes the nature and character

          of the case;        and

          (6)           As a general rule, the court should decline

amendments if a fresh suit on the amended claims

would be barred by limitation on the date of

application.

These are some of the important factors which may

be kept in mind while dealing with application filed under

Order VI Rule 17. These are only illustrative and not

exhaustive."

Wherein, in the above decision, the Hon'ble Apex Court

C/SCA/4858/2023 ORDER DATED: 06/04/2023

has considered the governing principles about exercising of

discretionary power by Court in relation to grant of refusal of

amendment.

5.2 I have considered the facts of the present case, where

the plaintiffs have filed affidavit-in-reply in the year 2005

and have sought amendment in the year 2022, and the trial

is already commenced and it is at the stage of recording of

evidence of the parties, and moreover, the amendment, which

is sought by way of amendment in the plaint, is changing

the entire subject matter of the suit whereby the petitioners

are seeking amendment of the property in question of Village

Sukhpar and by way of amendment, they are now asking to

mention the said property, of Village Bhuj, which will

certainly change the subject matter of the suit.

5.3 Moreover, the judgment of the Hon'ble Apex Court,

which is relied on by the learned advocate for the petitioners

in the case of Varun Pahwa (supra), pertains to inadvertent

mistake in the plaint committed by the counsel who has

drafted the plaint by describing the plaintiffs in cause-title

differently and here, the facts of the case are different then

the judgment which is cited by learned advocate for the

petitioners.

C/SCA/4858/2023 ORDER DATED: 06/04/2023

5.4 Moreover, at this stage, it is required to refer to the

judgment of the Apex Court in the case of Garment Craft

Versus Prakash Chand Goel reported in (2022) 4 SCC 181, whereby the Apex Court has said that supervisory jurisdiction

of High Court when to be exercised, more particularly,

paragraph 15 to 17 which read as under:

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice.

The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all

C/SCA/4858/2023 ORDER DATED: 06/04/2023

to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is

C/SCA/4858/2023 ORDER DATED: 06/04/2023

also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the

C/SCA/4858/2023 ORDER DATED: 06/04/2023

submission that the appellant came to know of the ex- parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

In view of the abovementioned judgment, this Court has

limited jurisdiction to interfere with the discretionary order

passed by the learned trial Court which is otherwise found

just proper and in accordance with the material available on

the record and also in consonance with the provisions and

accordingly this Court finds no merits in the petition

C/SCA/4858/2023 ORDER DATED: 06/04/2023

6. Hence, the present petition is dismissed at the

admission stage.

(SANDEEP N. BHATT,J) diwakar