Heirs Of Decd. Gordhanbhai ... vs Heirs Of Decd. Savjibhai ...
2023 Latest Caselaw 6837 Guj

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    C/SCA/15954/2020                                 CAV JUDGMENT DATED: 15/09/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 15954 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2      To be referred to the Reporter or not ?                               No

3      Whether their Lordships wish to see the fair copy                     No
       of the judgment ?

4      Whether this case involves a substantial question                     No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== HEIRS OF DECD. GORDHANBHAI JADAVBHAI Versus HEIRS OF DECD. SAVJIBHAI DAYALBHAI ========================================================== Appearance:

DECEASED LITIGANT for the Petitioner(s) No. 1,2,2.1,3 JENIL M SHAH(7840) for the Petitioner(s) No. 1.1,1.2,1.3,2.1.1,2.1.2,2.1.3,2.1.4,2.1.5,2.1.6,2.1.7,3.1,3.2,3.3,3.4,4

MR RAJESH O GIDIYA(5222) for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1.1,1.2,1.3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 15/09/2023

CAV JUDGMENT

1. Rule. Learned advocate Mr. Rajesh O. Gidiya waives service

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of rule on behalf of respondent no.2. Though served, none appears for other respondents.

2. This petition under Article 227 of the Constitution of India challenges order passed below application Exh.52 in Regular Civil Suit No.119 of 2015 by the learned Additional Senior Civil Judge, Palitana, whereby the application of the plaintiff filed under Order 6 Rule 17 of Code of Civil Procedure came to be rejected.

3. For convenience, the parties are referred to as their status before the Court below.

4. Short facts of the case of the plaintiff is as under :-

4.1. Upon compromise, co-sharer plaintiff got land ad- measuring 10 Acres 14 Guntas of Revenue Survey No.132 of Village Malpara. Out of the said parcel of land, by registered sale deed, the plaintiff has sold 6 Acres 10 Gunthas to some third party. So according to the plaintiff, land remains with him was 4 Acres and 4 Guntas. What is alleged in the plaint is that defendant taking advantage, have got mutated their name in the revenue record with regard to said 4 Acres and 4 Guntas though physical possession is lying with the plaintiff. With above pleadings, the plaintiff filed suit for declaration and permanent injunction seeking relief that defendant of the suit be restrained from interfering with the possession of plaintiff and restrained from changing hands of 4 Acres 4 Guntas of land.

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4.2. After filing above suit, according to the plaintiff, he came to know that defendant no.1 has sold aforesaid land which fell in his share and therefore, the plaintiff was required to make necessary amendment as plaintiff came to know about execution of sale deed. With such averments, application (Annexure C), the plaintiff sought amendment in the plaint which is comprehensively stated in para 2 of the application (Annexure C) and mainly sought to replace pleadings of 4 Acres 4 Gunthas by 8 Acres and 8 Guntas, some other pleadings are also pleaded under the guise of amendment and also amendment is asked in regard to alignment in the suit land.

5. The learned Court below having heard learned advocates for both the sides, considering the fact that documents by way of proposed amendment brought under scanner are 40 years old, the plaintiff was aware of the transaction and inspite of that the plaintiff without keeping due diligence tried to bring such fact on record under the guise of amendment in the pleadings under Order 6 Rule 17 of the CPC, the learned Court below found that proposed amendment will change nature of the suit and upon such findings, learned Court below disallowed the application Exh. 52 (Annexure C).

6. Hence, this petition.

7. Heard learned advocate Mr. Jenil Shah for the plaintiff and learned advocate Mr. Rajesh O. Gidiya for defendant no.2.

8. Learned advocate Mr. Jenil Shah would submit that

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learned Court below has committed error in understanding provision of law. He would submit that Court below was required to take liberal approach in allowing the application more particularly, the application is preferred at initial period of the suit and before beginning of the trial. He would submit that while deciding amendment under Order 6 Rule 17 of CPC, the Court below is not required to examine merits of contentions raised therein or that whether plaintiff is likely to succeed in litigation or not. He would submit that the Court below has allowed production of documents. The amendment sought was consequent thereto for recognizing transaction which took place effecting the right of the plaintiff. Thus, he would submit that learned Trial Court has committed error. He would submit that learned Court below cannot examine whether proposed amendment is barred by principle of limitation at the stage of deciding amendment application nor learned Court below can decide merits of the proposed amendment. However, the learned Court below overstepped its jurisdiction while negating relief of amendment in the plaint. To support the argument, reliance has been placed on following judgments :

(1) Mohinder Kumar Mehra v/s. Roop Rani Mehra [2018 SCC (2) 132] (2) Raghu Thilak D. John v/s. S.Rayappan [2001 GLH (2) 209 SC] (3) General Co-operative Bank Ltd. v/s. Srm Industries [1992 GLH (2) 459]

Upon above submissions, he would submit to allow this

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petition and grant relief as prayed for.

9. Putting strong objection to submission canvassed by learned advocate Mr. Jenil Shah for the plaintiff, learned advocate Mr. Rajesh O. Gidiya for the defendant would submit that prior to filing of the amendment application, the petitioner had filed Regular Civil Suit No.250 of 2015 before the said Court claiming relief identical to amendment sought in the present suit. Said suit was rejected by the Court below in exercise of power under Order 7 Rule 11 of CPC and consequently, unsuccessfully appeal being Regular Civil Appeal No.38 of 2016 was also preferred before the District Court, Bhavnagar. He would further submit that since the petitioner did not succeed in getting relief in Regular Civil Suit or Appeal, he tried to incorporate said aspect by way of amendment in the suit, which has rightly been noticed by the learned Trial Court. No error has been committed by the Court below in rejecting amendment application which calls for interference under supervisory jurisdiction. He would submit that transaction took place many years ago. The petitioner had knowledge of said transaction and inspite of this aspect, the petitioner did not made them part of the pleadings. He would submit that those transaction is not challenged by the petitioner till date and as such uptil now sale deed is intact. No question are put to the legality of said transaction even by proposed amendment. He would submit that considering nature of amendment sought by the plaintiff, even if it is allowed, it would completely change the nature as well as relief claimed in the suit, which is not permissible. Learned advocate Mr. Gidiya has relied upon following judgment :-

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(1) Liliben wd/o. Gabubhai Narsinhbhai through power of attorney v/s. Ramilaben w/o of Mohanbhai Govindbhai Patel [2012 (2) GLH 308] as well as order passed in SLP (Civil) No.21573 of 2011 between the same parties. (2) Life Insurance Corporation of India v/s. Sanjeev Builders Private Ltd. [AIR 2022 SC 4256].

(3) Mashyak Grihnirman Sahakari Sanstha Maryadit v/s. Usman Habib Dhuka and Ors. [(2013) 9 SCC 485].

Thus, it is submitted to dismiss this petition.

10. No other and further arguments are made.

11. Having heard learned advocates for the parties, at the outset the question arise whether the petitioner has made out case to exercise supervisory power with Court under Article 227 of the Constitution of India. With profit at this stage, let refer the judgment in the case of M/s. Puri Investments v/s. Young Friends and Co. [2022 LiveLaw (SC) 279]. The Apex Court has observed and held in para 10 and 11 as under :-

"10. In the case before us, occupation of a portion of the subject-premises by the three doctors stands admitted.

What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Court's order, learned counsel appearing for the respondents has emphasized that full control over

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the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)- tenant. This is the main defence of the tenant. We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:-

(i) Erroneous on account of non-consideration of material evidence, or

(ii) Being conclusions which are contrary to the evidence, or

(iii) Based on inferences that are impermissible in law.

11. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court."

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12. Considering the scope and ambit under supervisory jurisdiction, this Court is required to examine whether any illegality has been committed by the Court below in denying the relief of amendment in pleading.

13. It is admitted position that prior to seeking amendment in plaint under Order 6 Rule 17, the plaintiff had filed another suit being Regular Civil Suit No.250 of 2015 before the learned Principal Senior Civil Judge, Bhavnagar on 21.04.2015 inter-alia praying similar relief. The plaint came to be rejected in exercise of power under Order 7 Rule 11 of CPC. Being aggrieved by the order of rejection of plaint, the plaintiff has filed Regular Civil Appeal No.38 of 2016 before the District Court, Bhavnagar. Said appeal was also dismissed by confirming the order passed by Court below. Amendment sought in the pleadings by way of application was parimateria to the pleadings of Regular Civil Suit No.250 of 2015. It also appears that by the proposed amendment, plaintiff wants to add new grounds which is diametrically different then the pleadings already exist. Undeniably such proposed amendment would change nature of the suit. The plaintiff by proposed amendment intends to bring on record certain aspects coming from registered sale deed which was executed for subject land many years ago without offering any explanation of delay and without challenging legality and validity of such sale deed.

14. Undoubtedly power to allow amendment is wide and must be appropriately exercised in the interest of justice notwithstanding law of limitation. In Ganga Bai v/s. Vijay Kumar

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(1974) 2 SCC 393, the Apex Court has held thus :-

"22. .....The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court....."

15. At this stage, this Court may also refer to the case of B.K.Narayana Pillai v/s. Parameshwaran Pillai [(2000) 1 SCC 712] whereby relying upon the case of A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation [AIR 1967 SC 96] and M/s Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91], the Apex Court has held that Court should adopt a liberal approach in the matter of amendment and only when the other side had acquired any legal right due to lapse of time, the amendment should be declined. In para 61, it is held by the Apex Court as under :-

".....All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.

Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or results in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not

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fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement."

16. In the recent judgment in the case of LIC v/s. Sanjeev Builders Private Limited (supra), the Apex Court after noticing principle laid down in earlier judgments in the case of T.N.Alloy Foundry Co. Ltd. v/s. TN Electcity Board [(2004) 3 SCC 392 as well as in the case of Pirgonda Hongonda Patil v/s. Kalgonda Shidgonda Patil [AIR 1957 SC 363] has observed and held as under in para 20, 22 and 25 :-

"20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board & Ors., (2004) 3 SCC 392, this Court observed as follows:

"2. .....The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 : 1957 SCR 438] it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it.

3. It is not disputed that the appellate court has a coextensive power of the trial court. We find that the discretion exercised by the High Court in rejecting the plaint was in conformity with law."

22. It would be useful to also notice the observations of this Court in, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & 2 Ors., 1957 SCR 595 : AIR 1957 SC 363, wherein this Court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. In this case, this Court laid down the principles which would govern the exercise of discretion as to whether the court ought to permit an amendment of the pleadings or not. This Court

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approved the observations of Batchelor, J., in the case of Kisandas Rupchand & Anr. v. Rachappa Vithoba Shilwant and Ors. reported in ILR (1909) 33 Bom 644, when he laid down the principles thus:

"10. ....."All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real 6 questions in controversy between the parties ... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not?"....."

25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event.

The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis

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was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors., (2008) 14 SCC 632.

17. Division Bench of this Court in the case of Liliben wd/o Gabubhai Narsinhbhai (supra) has observed and held in para 17 and 18 as under :-

"17. In any view of the matter, in that decision, namely, Pankaja and another (supra), the question of limitation was found to be arguable issue and on that ground the Supreme Court allowed the amendment and the trial Court was directed to frame necessary issue on the question of limitation and decide the same keeping in view the law laid down in another Supreme Court's decision rendered in the case of L.J.Leach & Co. Ltd. v/s. Jardine Skinner, reported in AIR 1957 SC 357. But, in the present case, we are in full agreement with the Courts below that there was no dispute on the question of limitation. Therefore, it cannot be said that the point of limitation was arguable one and the same should be decided by raising the issue at the time of disposal of the suit.

18. It is settled law that grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment, (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party, (iii) when allowing amendment application defeats the law of limitation."

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18. Applying the test laid down in aforenoted case law, what appears that by proposed amendment entire nature of suit is going to be changed. It will introduce absolute new cause of action which may prejudice other party and law of limitation may also be defeated. What appears from the impugned order is that learned Trial Court thoroughly examined this issue and also held that plaintiff was aware about the sale deed upon which he was seeking amendment. It is further held by the Court below that the plaintiff approached the Court for amendment almost after 5 years. Proposed amendment if allowed would sufficiently change the nature of suit and would defeat law of limitation as sale deed which was brought on record by documentary list are almost 40 years old. Perusal of the reasons stated in the impugned order indicates that the Court below has not committed any patent illegality in denying relief of amendment. The petitioner failed to make out case for exercise of supervisory jurisdiction. So far as reliance placed on judgments by learned advocate Mr. Jenil Shah, they are different on facts and does not render any assistance.

19. For the foregoing reasons, the petition fails. Accordingly, it is dismissed. Rule is discharged.

(J. C. DOSHI,J) SATISH