Gujarat High Court
Ambaben D/O Balubhai Mohanbhai Patel ... vs Deceased Ratanben Wd/O Balubhai ... on 7 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2323 of 2024
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AMBABEN D/O BALUBHAI MOHANBHAI PATEL AND W/O THAKORBHAI
VALLABHBHAI PATEL & ORS.
Versus
DECEASED RATANBEN WD/O BALUBHAI MOHANBHAI PATEL (DIED ON
20.12.2015) & ORS.
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Appearance:
MR ADIL R MIRZA(2488) for the Petitioner(s) No. 1,2.1,2.2
MR PUSHPADATTA VYAS(1296) for the Respondent(s) No.
2.1,2.2,2.3,2.4,3,4.1,4.2,4.3,4.4,4.5,5.1,5.2,6,8.1,8.2,8.3
NOTICE SERVED for the Respondent(s) No. 7.1,7.2,7.3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/04/2025
ORAL ORDER
1. Heard learned advocate Mr. Adil R. Mirza for the
petitioners and learned advocate Mr. Pushpadatta Vyas
for the contesting respondents. Though served, none
appear for rest of the respondents.
2. The present writ petition is filed under Article 227 of the
Constitution of India seeking following reliefs :-
"(A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to issue appropriate writ, order or
direction, quashing and setting aside the order dated 02.09.2023
(Annex B) passed by Ld. 2nd Additional Sr. Civil Judge & ACJM,
Ankleshwar on an application Exh. 106 in Regular Civil Suit No.52 of
2011;
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(C) Pending hearing, admission and final disposal of this petition,
Your Lordships may be pleased to stay further proceedings of Regular
Civil Suit No.52 of 2011 pending before the court of Ltd. Principal Sr.
Civil Judge, Ankleshwar;
(D) Pending hearing, admission and final disposal of this petition,
Your Lordships may be pleased to stay the implementation and
execution of order dated 02.09.2023 (Annex B) passed by the Ltd. 2 nd
Additional Sr. Civil Judge & ACJM, Ankleshwar below Exh. 106 in
Regular Civil Suit No.52 of 2011;"
3. The short facts of the case are as under and as far as
possible, the parties may be referred as per the original
position in the Suit.
4. The petitioners herein are the original plaintiffs having
filed Regular Suit No.52 of 2011 pending before the
learned Senior Civil Judge against the respondents No. 1
to 7 herein wherein the respondent No.8, came to be
joined in the Suit proceedings on 25.10.2018 as the
defendant No.8. The Suit is filed for declaration and
partition. The defendant No.8 happens to be purchaser of
the one of the Suit properties i.e. Survey No.80/2 in
question thereby he was joined in the suit proceedings.
The defendant No.8 died during the pendency of the Suit
and his legal heirs were brought on record, i.e. defendant
No.8.1 to 8.3. The issues are framed then after, trial
commenced in year 2021 as plaintiffs have begun their
evidence.
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5. The plaintiffs appear to have filed the impugned
application under Order 6 Rule 17 of the Civil Procedure
Code, 1908 (CPC) after commencement of trial and the
same was submitted on 21.08.2023 thereby they have
sought to challenge the Sale Deed dated 13.06.2007
which came to be executed by the defendant No.2 in
favour of defendant No.8.
6. After hearing the parties, the trial Court vide its
impugned order dated 02.09.2023 has rejected the
impugned application. Being aggrieved and dissatisfied
by the impugned order, the plaintiffs have preferred the
present application. It is reported that suit has been
proceeded further and now, it is at stage of final
arguments of parties.
7. Submission of the petitioners / plaintiffs :-
Learned advocate Mr. Adil R. Mirza submitted that the
trial Court has committed gross error of law in not
allowing the amendment application thereby causing
grave injustice to the plaintiffs. It is further submitted
that the plaintiffs were not aware about the execution of
the Sale Deed which was executed in the year 2007 but
in fact the relevant entry was mutated in the year 2011
on 13.06.2011 and as such, there is no delay in filing the
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amendment application. It is also submitted that the
question of delay cannot be gone into at the stage of
considering the amendment application which is gone
into by the trial Court and thereby has committed a
jurisdictional error. It is submitted that the law is very
settled on this aspect as per the decision of the Apex
Court in the case of Life Insurance Corporation of India
v. Sanjeev Builders Pvt. Limited reported in (2022) 16
SCC 1 and would further submit that the impugned
amendment application requires to be allowed. Making
the above submissions, it is prayed that present petition
may be allowed.
8. Submission of the respondents :-
Learned advocate Mr. Pushpadatta Vyas appearing for the
contesting respondents would submit that the amendment
application is hopelessly time barred as the plaintiffs
were made aware about the execution of the Sale Deed
in favour of the defendant No.8 by the defendant No.2 in
the year 2011 itself, which is confirmed from the plain
reading of the written statement of defendant No.2 filed
on record. It is further submitted that the revenue entry
was mutated in the year 2011 which was well within the
knowledge of the plaintiffs as the same is confirmed in
the written statement of the defendants. It is also
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submitted that the defendant No.8 was joined in the suit
proceedings in the year 2018, at that point of time, the
plaintiffs were well aware about the execution of the Sale
Deed by the defendant No.2 in favour of the defendant
No.8 and at that relevant point of time, the plaintiffs
have chosen not to challenge the Sale Deed in question.
Learned advocate Mr. Pushpadatta Vyas submitted that
considering both these facts, the amendment application
is hopelessly time barred and once it has been so proved
on record that the amendment application is time barred,
such amendment application could not have been allowed
by the trial Court which is correctly rejected. Lastly, it is
submitted that impugned amendment application was
filed after commencement of trial, as per proviso to O.6
R.17 of CPC, in absence of any due diligence of plaintiff
to bring such amendment in time, this Court while
exercising its jurisdiction under Article 227 of the
Constitution of India should not interfere with the well
reasoned order passed by the trial Court.
9. No other and further submissions have been made by
learned advocates appearing for the respective parties.
10. The short question which arises for the
consideration of this Court as to whether the amendment
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sought by the plaintiffs is time barred and proviso to
Order 6 Rule 17 of CPC would apply thereby impugned
application was correctly rejected by the trial Court?
11. The facts which are not in dispute can be
summarized as under :-
(i) The Suit in question came to be filed on 26.04.2011
seeking declaration and partition of the suit properties
including Survey No.80/2 in question. The defendants
No.1 to 6 have jointly filed their written statement on
09.12.2011 wherein in Paragraph 9 on internal page 4 of
written statement has categorically referred about selling
of one of suit land i.e. Survey No.80/2.
(ii) The defendant No.2 has executed a Registered Sale
Deed in favour of defendant No.8 on 13.06.2007 and
revenue entry is certified of such transaction on
13.06.2011 which is subsequent to filing of suit but prior
to filing of written statement.
(iii) The defendant No.8 is joined in the Suit proceedings
on 25.10.2018 and his legal heirs are brought on record
on 02.02.2023.
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(iv) The impugned amendment application appears to
have been filed on 21.08.2023. The trial has already
commenced as evidence of plaintiff begun in year 2021.
(v) The plaintiffs are required to challenge Sale Deed
executed in favour of defendant No.2 within three years
from the date of knowledge as provided under Article 58
read with Article 59 & 113 of the Limitation Act, 1963 as
the case may be.
(vi) The defendants have disclosed the selling of the land
in question, i.e. Revenue Survey No.80/2 in the written
statement filed in the year 2011, it was expected that the
plaintiff must have gathered knowledge of execution of
Sale Deed in question as by the time revenue record in
relation to the aforesaid property is already mutated.
(vii) Even if we may consider that the plaintiffs were not
aware about the execution of the Sale Deed in question
in the year 2011, surely it was within their knowledge
about execution of the Sale Deed in question, at least
they were required to challenge it within a period of
three years from the year 2018 itself when they
themselves joined defendant No.8 in the suit.
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12. By taking into account all the dates as referred
hereinabove, which is beyond the period as prescribed
under Article 58 read with Article 59 & 113 of the
Limitation Act, 1963 (herein after referred as Act, 1963),
thus, the amendment which is sought for is hopelessly
time barred and once there is no dispute about the
aforesaid dates, the delay in question is not an arguable
issue at all.
13. At this stage, I would like to refer relevant
provisions of Limitation Act, 1963. The declaration
seeking transaction void and or seeking any declaration
would be governed by Articles 58, 59 and or 113 of the
Act, 1963 as the case may be. A period of limitation
which is prescribed under Act, 1963 is a three years.
Such period begins to run when the right to sue first
accrues and or when the facts entitling the plaintiff to
have the instrument first become known to him as the
case may be. The relevant aforesaid articles read as
under :-
Description of Suit Period of Limitation Time from which period
begins to run
PART III.--SUITS RELATING TO DECLARATIONS
58. To obtain any other Three Years When the right to sue
declaration first accrues
PART IV.--SUITS RELATING TO DECREES AND INSTRUMENTS
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59. To cancel or set aside Three Years When the facts entitling
an instrument or decree the plaintiff to have the
or for the rescission of a instrument or decree
contract cancelled or set aside or
the contract rescinded
first become known to
him
PART X.--SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
113.Any suit for which Three Years When the right to sue
no period of limitation is accrues.
provided elsewhere in
this Schedule.
14. By plain reading of the aforesaid provisions of the
Limitation Act, the plaintiffs were supposed to challenge
the sale deed within three years from the date of their
knowledge i.e. 2011 or 2018 as the case may be. But
undisputedly not done so till filing of impugned
application on 21.08.2023.
15. At this stage, it is pertinent to refer and rely upon
the decision of the Apex Court in the case of Revajeetu
Builders and Developers v. M/s. Narayanswamy and
Others reported in (2009) 10 SCC 84 and in the said
decision it was held as under :-
"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING
WITH APPLICATIONS FOR AMENDMENTS:
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.
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(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;
(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.
64. The decision on an application made under Order VI Rule 17 is a
very serious judicial exercise and the said exercise should never be
undertaken in a casual manner. We can conclude our discussion by
observing that while deciding applications for amendments the courts
must not refuse bona fide, legitimate, honest and necessary
amendments and should never permit mala fide, worthless and/or
dishonest amendments."
(emphasis supplied)
16. Likewise, the Hon'ble Apex Court in the case of
Sanjeev Builders Pvt. Ltd. (supra) which in fact relied
upon by learned advocate Mr. Mirza, has also succinctly
summarized the principles on which an amendment
application can be granted or not to be granted. It has
summed up their conclusion as under :-
"71. final conclusions may be summed up thus :
71.1 Order II Rule 2 CPC operates as a bar against a subsequent suit
if the requisite conditions for application thereof are satisfied and the
field of amendment of pleadings falls far beyond its purview. The
plea of amendment being barred under Order II Rule 2 CPC is, thus,
misconceived and hence negatived.
71.2 All amendments are to be allowed which are necessary for
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determining the real question in controversy provided it does not
cause injustice or prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the latter part of
Order VI Rule 17 of the CPC.
71.3 The prayer for amendment is to be allowed :
71.3.1 If the amendment is required for effective and proper
adjudication of the controversy between the parties, and
71.3.2 To avoid multiplicity of proceedings, provided:
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek
to withdraw any clear admission made by the party which confers a
right on the other side and
(c) the amendment does not raise a time barred claim, resulting in
divesting of the other side of a valuable accrued right (in certain
situations).
71.4 A prayer for amendment is generally required to be allowed
unless :
71.4.1 By the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be time
barred becomes a relevant factor for consideration,
71.4.2 The amendment changes the nature of the suit.
71.4.3 The prayer for amendment is malafide, or
71.4.4 By the amendment, the other side loses a valid defence.
71.5 In dealing with a prayer for amendment of pleadings, the court
should avoid a hyper technical approach, and is ordinarily required to
be liberal especially where the opposite party can be compensated by
costs.
71.6 Where the amendment would enable the court to pin-pointedly
consider the dispute and would aid in rendering a more satisfactory
decision, the prayer for amendment should be allowed.
71.7 Where the amendment merely sought to introduce an additional
or a new approach without introducing a time barred cause of action,
the amendment is liable to be allowed even after expiry of limitation.
71.8 Amendment may be justifiably allowed where it is intended to
rectify the absence of material particulars in the plaint.
71.9 Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the prayer
for amendment could be allowed and the issue of limitation framed
separately for decision."
(emphasis supplied)
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17. This Court has recently had an occasion to decide very
issue involved in present case wherein after revisiting law on
the subject in its judgment dated 07-03-2025 passed in SCA
No. 26326 of 2022 in a case of Chiragbhai Arvindbhai Desai
vs. Heirs of Pushpaben D/o. Ambalal Javerbhai and Wd/o
Manubhai Parshottambhai & Ors. held as under :-
"12.7 Thus, when the plaintiff has come out with an amendment
application filed in the year 2021 without giving any explanation
about delay in seeking amendment as sought for declaration thereby,
to challenge a sale deed in question executed in the year 1992 then,
trial Court was well within his right to reject the impugned
application having found that declaration as sought for is time barred.
14.7 So, in view of the aforesaid provisions of the Act, 1963 as well
as ratio of Hon'ble Apex Court in the case of Premsingh (supra) and
Ramti Devi (supra), if apply to the present case, plaintiff was required
to challenge the sale deed in question when plaintiff first came to
know about it i.e. three years from date of such knowledge as right
to sue accrued at that time. Having so observed in earlier part of this
judgment and so also by the trial Court, the plaintiff was well aware
about the sale-deed in question in year 1992/1993 itself, he was
required to challenge the sale deed in question within three years
from such period. The plaintiff having remain indolent for decades
and wake up from slumber, sought to challenge the sale deed in
question in the year 2021, considering the aforesaid provision of
Limitation Act, 1963, his claim is hopelessly time barred.
16. .......... the impugned amendment application filed by the
plaintiff thereby, sought the declaration in turn to get it cancel
registered sale deed dated 03-10-1992 in question executed by
defendant no. 1 and 2 in favour of defendant no. 3 and 4 is correctly
not allowed by the trial Court as amendment sought for is hopelessly
time barred."
(emphasis supplied)
18. So far as the decision in the case of Sanjeev
Builders Pvt. Limited (supra) which is relied by learned
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advocate Mr. Adil R Mirza, there is no cavil that the
delay in applying for the amendment is not a ground to
disallow the prayer where the aspect of delay is arguable.
But as referred hereinabove, the delay in the present case
is not arguable as the dates speak for themselves and the
amendment sought for is time barred.
19. Lastly, as trial of suit has commenced when
impugned amendment application came to be filed than
as per proviso to Order 6 Rule 17 of CPC, unless
applicant-plaintiff shows due diligence in not bringing
amendment at relevant time and Court comes to
conclusion that party could not have raised the matter
before the commencement of trial, Court can not grant
the amendment of pleadings. Such provision reads as
under,
"17. Amendment of pleadings.--The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties:
Provided that no application for amendment shall be 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."
Thus, in view of aforesaid facts and provision of law, plaintiffs have
not made out such case of any due diligence thereby, not able to
prove that such amendment could not be raised prior to
commencement of trial."
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20. The upshot of said discussion, observations and
reasons as well as in view of the aforesaid facts and the
law laid down by the Apex Court in the aforesaid
decisions, the order impugned is not required to be
interfered with by this Court while exercising its power
under Article 227 of the Constitution of India. I am of
the view that there neither any jurisdictional error nor
any gross error committed by trial Court while passing
impugned order.
21. In view of the aforesaid observation and discussion,
there is no merit in the present petition and the same is
required to be dismissed and is hereby dismissed.
Notice discharged. No order as to costs.
Sd/-
(MAULIK J. SHELAT, J)
CAROLINE
