Gujarat High Court
Ramanbhai Ranchhodbhai Patel vs Deceased Laxmiben Nagindas Patel D/O ... on 17 April, 2025
NEUTRAL CITATION
C/SCA/19108/2018 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19108 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 19109 of 2018
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RAMANBHAI RANCHHODBHAI PATEL & ORS.
Versus
DECEASED LAXMIBEN NAGINDAS PATEL D/O HARIBHAI VITTHALBHAI &
ORS.
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Appearance:
MR MANAN A SHAH(5412) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR NV GANDHI(1693) for the Respondent(s) No. 1.1,1.2,1.3
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/04/2025
ORAL ORDER
1. Heard learned advocate Mr.Manan A. Shah appearing for
the petitioners and Ms.Mona Gupta, learned advocate with
Mr.N.V.Gandhi appearing for the respondent nos.1.1. to 1.3.
Though served, none appears for rest of the respondents.
2. Both these petitions, though touching different set of
orders but arising out of the same suit and having same
bearing between them, so with the consent of learned
advocates appearing for the respective parties, by way of this
common judgment, this court is dealing with both these
matters.
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3. So far as Special Civil Application No.19108 of 2018 is
concerned, the same filed under Article 227 of the Constitution
of India for the following reliefs:-
(A) YOUR LORDSHIPS be pleased to issue appropriate
writ, order or direction, quashing and setting aside the
impugned order dated 7.8.2018 passed by Ld. Principal
Civil Judge & Judicial Magistrate, First Class, Palsana on
application below Exh.65 in Regular Civil Suit No.30 of
2015 (Old Special Civil Suit No.37 of 2006), in the
interest of justice;
(B) Pending the admission, hearing and final disposal of
this petition, YOUR LORDSHIPS be pleased to stay the
implementation, operation and execution of the impugned
order dated 7.8.2018 passed by Ld. Principal Civil Judge
& Judicial Magistrate, First Class, Palsana on application
below Exh.65 in Regular Civil Suit No.30 of 2015 (Old
Special Civil Suit No.37 of 2006);
(C) Pending the admission, hearing and final disposal of
this petition, YOUR LORDSHIPS be pleased to stay the
further proceedings of Regular Civil Suit No.30 of 2015
(Old Special Civil Suit No.37 of 2006 pending in the
court of Ld. Principal Civil Judge & Judicial Magistrate,
First Class, Palsana;
(D) YOUR LORDSHIPS be pleased to grant such other and
further reliefs, as may be deemed fit by this Hon'ble
Court, in the interest of justice;
4. The Special Civil Application No.19109 of 2018 also filed
under Article 227 of the Constitution of Iseeking following
reliefs:-
(A) YOUR LORDSHIPS be pleased to issue appropriate
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writ, order or direction, quashing and setting aside the
impugned order dated 7.8.2018 passed by Ld. Principal
Civil Judge & Judicial Magistrate, First Class, Palsana on
application below Exh.66 in Regular Civil Suit No.30 of
2015 (Old Special Civil Suit No.37 of 2006), in the
interest of justice;
(B) Pending the admission, hearing and final disposal of
this petition, YOUR LORDSHIPS be pleased to stay the
implementation, operation and execution of the impugned
order dated 7.8.2018 passed by Ld. Principal Civil Judge
& Judicial Magistrate, First Class, Palsana on application
below Exh.66 in Regular Civil Suit No.30 of 2015 (Old
Special Civil Suit No.37 of 2006);
(C) Pending the admission, hearing and final disposal of
this petition, YOUR LORDSHIPS be pleased to stay the
further proceedings of Regular Civil Suit No.30 of 2015
(Old Special Civil Suit No.37 of 2006 pending in the
court of Ld. Principal Civil Judge & Judicial Magistrate,
First Class, Palsana;
(D) YOUR LORDSHIPS be pleased to grant such other and
further reliefs, as may be deemed fit by this Hon'ble
Court, in the interest of justice;
5. The petitioner hearing are original defendants of Regular
Civil Suit no.30 of 2015 (old Special Suit No.37 of 2006) filed
by the predecessor of respondent Nos.1.1 to 1.3 herein.
The suit is filed seeking declaration and injunction, thereby
original plaintiff seeking declaration that she has a right, title,
interest over the suit properties and asked for the injunction,
as prayed for in the suit.
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6. It appears that pending the suit proceeding, there was
sale agreement in relation to one of the suit property in favor
of respondent No.2 herein, thereby, plaintiff has filed the
joining party application under Order 1 R. 10 (2) of CPC below
Exhibit 65 to allow the plaintiff to join respondent No.2 herein
in the suit proceedings.
7. After hearing the parties, the trial court has allowed the
said application, which is challenged by way of the writ
application being Special Civil Application No.19108 of 2018.
8. Likewise, the plaintiff has also filed impugned
amendment application below Exhibit 66, whereby requested
the trial court to permit the plaintiff to amend the suit
thereby, allow plaintiff to incorporate additional prayer
regarding partition of the suit property and other consequential
reliefs. Such application also came to be allowed by the trial
court, which is impugned in the writ application being Special
Civil Application No.19109 of 2018.
9. Learned advocates appearing for the respective parties
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have appraised this Court that during the pendency of the
present writ applications, the trial of the suit has been
proceeded further and the suit reaches at the final hearing
stage.
10. Learned counsel Mr. Manan Shah would submit that the
impugned applications filed by the original plaintiff for joining
as well as amendment application are wrongly allowed by the
trial court, which is contrary to the provisions of law.
10.1 Learned advocate Mr. Shah would further submit that
there is no prayer sought against the proposed defendants, i.e.,
respondent No.2 herein in the suit, and the plaintiff could not
have been allowed to join her in the suit, which is essentially
filed between the family members in relation to the suit
properties in question.
10.2 Learned counsel Mr. Shah would further submit that
the trial court has not granted any sufficient reasons while
allowing application of joining party and in a very cavalier
fashion it has allowed it, which may be interfered with by this
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court.
10.3 Learned advocate Mr. Shah would further submit that
the plaintiff could not have been permitted to amend the
plaint, as a defence so raised by the defendants in the written
statement would jeopardize by allowing such application, as
original plaintiff has not challenged the partition, which is
signed by her.
10.4 Learned advocate Mr. Shah would further submit
amendment application is filed belatedly and without any
reasons and the same has been allowed by the Trial Court.
10.5 Learned advocate Mr. Shah would further submit that
at this stage, if this Court may not entertain this petition, right
of defendants to object amended prayers so made in the
application, while finally arguing the suit may not be affected
and trial court may be advised to decide the lis between the
parties as per the evidence on record.
10.6 Making the above submission, the learned advocate
Mr. Shah would request this court to allow the present
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application.
11. Learned advocate Ms. Mona Gupta appearing with
Learned advocate Mr. N.V. Gandhi for the respondents would
submit that both these two applications are misconceived at
law and this Court, while exercising its power under Article
227 of the Constitution of India, may not entertain these
applications.
11.1 Learned advocate Ms. Gupta would submit that during
the pendency of the writ applications, the trial of the suit has
completed and the suit is posted for final argument, and in
fact, trial court is in the midst of final hearing of the suit,
then at this stage, this court may not interfere with the orders
impugned in the present writ applications.
11.2 Learned advocate Ms. Gupta would submit that
respondent No.2 - defendant No.11 - proposed party, was
required to be joined having a semblance in one of the suit
properties purchased by her. She would rely upon the decision
of Honourable Supreme Court of India in the case of Sumtibai
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& Others vs Paras Finance Co. Mankanwar reported in (2007)
10 SCC 82 and Mumbai International Airport Pvt. Ltd vs
Regency Convention Centra & Hotels & Ors reported in (2010)
7 SCC 417.
11.3 Learned advocate Miss Gupta would further submit
that so far as amendment application is concerned, no rights of
defendants would have been prejudiced by granting such
amendment, and as such, necessary issues and evidence are
already laid by the parties, then the trial court will decide suit
or lis between the parties as per such evidence.
She would further submit that unless the amendment, sought
for is going to change the nature of suit and if it is hopelessly
time-barred, the trial court is required to grant such
amendment, which is correctly done so by trial Court.
11.4 To buttress her argument, she has relied upon the
decision of Honourable Supreme Court of India in the case of
Life Insurance Corporation Of India vs Sanjeev Builders Private
Limited reported in (2022) 16 SCC 1.
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11.5 Making the above submission, she would request this
court to allow the civil application filed by the respondent.
12. At the outset, it is required to be noted here that during
the pendency of both these writ applications, the trial of the
suit is almost completed, as it is posted for final argument of
the parties, and this Court has been informed by the learned
advocate appearing for the respective parties that final
arguments have already been commenced.
13. So, at this stage, considering the aforesaid facts and
circumstances of the case, it would not be appropriate for this
Court to interfere with the impugned orders passed by the trial
court.
14. Nonetheless, considering the fact that proposed defendant
i.e., defendant No.11 - respondent No.2, having purchased one
of the suit property, having interest in the subject matter,
thereby plaintiff being dominus litis is well within her right to
join such transferee pendente lite. The issue is no longer
remained res integra, which could be applied as clarified in
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the case of Sumitabai (supra) and Mumbai International
(supra).
15. So far as amendment, which has been sought for and
granted by the trial court is concerned, in view of the
aforesaid fact that the parties have already laid their evidence
on their respective defences, it would not be appropriate to
disturb such impugned order at this stage, except to observe
that by granting such amendment, nature of the suit would not
going to change and so far as the question of limitation is
concerned, it would be writ large before the trial court to
decide issue of limitation, which shall be considered by the
trial court at the conclusion of hearing of the suit.
16. It is also clarified by Honourable Supreme Court of India
in the case of Sanjeev Builders (supra) that where the aspect of
delay is arguable, the prayer for amendment could be allowed
and the issue of limitation framed separately for decision.
17. The trial court is requested to decide the lis between the
parties as per the evidence coming forth on record without
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being influence by any of the observations so made in the
orders impugned and order passed by this Court.
18. At last, in view of the aforesaid facts and circumstances,
and considering the scope and ambit and power of this court
to interfere with the impugned order while exercising its power
under Article 227 of the Constitution of India is very limited,
and keeping in mind the ratio of Sameer Suresh Gupta (supra)
and Garment Craft (supra), I am of the view that there is no
merit in the present writ applications, which are not required
to be entertained and is hereby DISMISSED. Rule discharged.
No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
