Gujarat High Court
Chetnaben Chetankumar Patel vs Bhalabhai Mohanbhai Koli on 24 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5208 of 2025
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CHETNABEN CHETANKUMAR PATEL
Versus
BHALABHAI MOHANBHAI KOLI & ORS.
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Appearance:
MR SANDEEP R LIMBANI(5977) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/04/2025
ORAL ORDER
1. When the matter was taken up for hearing, at the outset,
learned advocate Mr. Vishal C. Mehta who seeks permission of
the Court to allow him to appear for respondent No.10, in the
matter. Permission, as sought for, is granted. Learned advocate
Mr. Mehta can file his Vakalatnama within 2 days from today.
2. Heard learned advocate Mr.Sandeep R. Limbani appearing
for the petitioner and learned advocate Mr.Vishal C. Mehta for
respondent No.10. With the consent of learned advocates for
the respective parties, the matter is taken up for hearing.
3. The present application is filed under Article 227 of the
Constitution of India seeking following reliefs:-
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"(a) A writ of certiorari or any other writ order or direction may
kindly be issued to quash and set aside the order passed by the
Principle Senior Civil Judge, Halwad, District Morbi in Special Civil
Suit No. 5 of 2018(Old no;17 of 2016) below application, Exh. 85,
dated 11-03-2025 at Annexure 'I' herein by allowing the said
application, at Exh. 85, preferred by the Petitioner as prayed for, in
the interest of justice.
(b) Pending hearing and final disposal of the present Special Civil
Application, stay the further proceedings of Special Civil Suit No. 5
of 2018,(Old no; 17 of 2016) at Annexure -D to this petition and
pending before the court of Principle Senior Civil Judge, Halwad,
District Morbi, may kindly be ordered to be stayed, in the interest of
justice.
(c) Any other and/or further reliefs that may be deemed necessary
and expedient in the interest of justice may kindly be granted."
4. The parties may be referred to as per their original
position in the suit.
5. The short facts of the case, which are necessary to
adjudicate the present writ application, are as under:-
6. The petitioner herein is original plaintiff who instituted
Special Civil Suit No.5 of 2018 (Old No.17 of 2016) against
respondents herein.
6.1 The suit is titled as for declaration, injunction and
performance of agreement as well as cancellation of sale deed
executed by original owner of suit land in favor of other
private respondents. Nonetheless, prayers for specific
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performance of agreement for sale is not sought for.
6.2 After pleadings were filed, the Trial Court has framed
the issues and the plaintiff has put herself into the witness box
for cross-examination and in the midst of cross-examination,
when the question put to her that no relief is sought seeking
performance of agreement for sale in the suit by showing her
prayer clause, plaintiff felt to file the impugned amendment
application below exit 85.
6.3 The impugned application is filed seeking an
amendment in the prayer clause, thereby it has been prayed
that the prayer may be added whereby original owner of such
land be directed to execute sale deed on the basis of
agreement for sale dated 27th September, 1999 (Exhibit 66). So,
the plaintiff has come up with the impugned amendment
application seeking the prayer of specific performance of
agreement for sale which was forgotten by her while instituting
the suit.
6.4 The plaintiff has only stated the reason of delay, in
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filing such impugned amendment application, is a bona fide
mistake and such facts came to notice during her cross-
examination.
6.5 After hearing the parties at first in point of time, the
Trial Court has allowed impugned application. It further
appears that some of the contesting defendants have challenged
the order dated 12.12.2024 passed by Trial Court granting such
amendment application before this Court by way of Special
Civil Application No.374 of 2025 which came to be partly
allowed with consent of parties by this Court vide its order
dated 23rd January, 2025, thereby the matter was remanded
back to the Trial Court with the specific observation that
aspect of proviso to Order VI Rule 17 of the Civil Procedure
Code, (hereinafter referred to as "CPC") vis-a-vis due diligence
of plaintiff while submitting the amendment application be
decided while adjudicating impugned amendment application.
6.6 After remand of the matter, the Trial Court had heard
parties afresh and accordingly, re-adjudicated the impugned
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application and vide its order dated 11th March, 2025, rejected
the impugned application on the ground that neither any
submission with regard to due diligence have been made by
the learned advocate for the plaintiff nor anything pointed out
by the plaintiff during the course of submission in relation to
observance of due diligence by plaintiff while bringing
amendment.
7. Being aggrieved and dissatisfied with the aforesaid order,
the original plaintiff has preferred the present writ application.
SUBMISSION OF THE PETITIONER - PLAINTIFF
8. Learned advocate Mr. Sandeep R. Limbani, would submit
that when the Trial Court had, at first round, allowed the
application, by specifically observing that the amendment,
which has been sought for by the plaintiff, is required to be
granted and there would not be any serious prejudice caused
to the defendants then, the Trial Court ought to have granted
the amendment application.
8.1 Learned advocate Mr. Limbani would further submit
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that Trial Court did observe in impugned order that to avoid
any multiplicity of proceeding and to give liberal meaning to
proviso to Order VI Rule 17 of CPC, the amendment is
required to be granted, then the Trial Court could not have
rejected the amendment application.
8.2 Learned advocate Mr. Limbani would submit that there
was a mistake on the part of advocate and due to such bona
fide mistake, necessary prayer in the suit could not have been
incorporated, which would not disentitle the plaintiff to
incorporate such prayer when essentially in the suit as well as
in the prayer clause, plaintiff has already sought for execution
of sale deed in her favor.
8.3 Learned advocate Mr. Limbani would further submit
that no serious prejudice would cause to the defendants if
amendment, as sought for, can be granted as it is only
explanatory in nature and the suit is already instituted within
limitation, question of period of limitation to claim
performance of agreement would not arise in the present case.
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8.4 Learned advocate Mr. Limbani would further submit
that it is settled legal position of law that the rule of
procedure is handmade of justice and liberal approach is
always to be taken by court, especially, when an amendment
application is being adjudicated.
8.5 Learned advocate Mr. Limbani would further submit
that the Court is required to avoid hyper-technical approach
while advancing justice to the parties.
8.6 To buttress his argument, Learned advocate Mr.
Limbani would rely upon following decisions of Hon'ble
Supreme Court of India:-
(i) Jai Jai Ram Manohar Lal vs National Building
Material Supply, Gurgaon, reported in (1969) 1 SCC
869 (para 5)
(ii) Abdul Rehman and Another vs. Mohd. Ruldu
and Others, reported in (2012) 11 SCC 341 (Para 10)
(iii) Varun Pahwa vs. Renu Chaudhary reported in
(2019) 15 SCC 628 (Para 7 and 8)
8.7 Making the above submissions, learned advocate Mr.
Limbani would request this Court to allow the present writ
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application.
SUBMISSION OF THE RESPONDENT NO.10.
9. Learned advocate Mr.Vishal C. Mehta appearing for
respondent No.10 would adopt the argument of learned
advocate Mr. Limbani appearing for the petitioner, thereby
would submit that as the Trial Court has committed an error
while rejecting the impugned amendment application as no
serious prejudice would be caused to defendants, especially,
when plaintiff's evidence is yet not over.
9.1 So, learned advocate Mr.Mehta would request this
Court to allow the present application.
THE POINT FOR DETERMINATION
10. The short question falls for consideration of this Court is
as to whether any gross error and or jurisdictional error
committed by Trial Court while rejecting the impugned
amendment application, especially when plaintiff failed to
submit and show observance of her due diligence while
submitting impugned amendment application?
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ANALYSIS
11. The facts, which are observed herein, are not in dispute.
As such, it is remain undisputed fact that the impugned
amendment application is filed when trial of suit has already
commenced and it was presented at the stage where plaintiff
was cross-examined by the defendants. To appreciate the
controversy in detail, I would first like to refer to Order VI
Rule 17 of CPC which reads as under:-
"ORDER VI-PLEADINGS GENERALLY
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."
12. The proviso to Order VI Rule 17 of CPC would indicate
that no application for amendment shall be allowed if a trial
has commenced unless party could not have raised the matter
before commencing of trial by way of due diligence. The court
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is required to come to the conclusion that in spite of due
diligence, parties could not have raised such amendment.
13. When, in earlier round of litigation, the impugned
amendment application came to be allowed by the Trial Court
without observing and taking note of such proviso, this Court
while remanding the matter back to the Trial Court vide its
order dated 23rd January, 2025 observed as under in para 8
and 9.
"8. Thus, in view of the aforesaid facts and provision of law,
as well as the aforesaid consensus ad-idem between the
parties, the impugned judgment and order is hereby quashed
and set aside. The trial Court is hereby directed to decide
afresh impugned application seeking an amendment
application filed below Exh. 85 in Special Civil Suit No. 5 of
2018 pending before the court of learned Principal Senior
Civil Judge, Halvad preferably within a period of one month
from the date of receipt of this order by giving full opportunity
of hearing to both the sides and after considering the
application afresh decide the same in accordance with law.
As a word of caution of learned trial Court is required to
consider the provisions of law while adjudicating any
application.
9. Prima-facie, this Court is of the view that whenever there is
an amendment application which is press into service after
framing of the issue i.e. after commencement of the trial, the
proviso of Order VI rule 17 of CPC always requires to be
taken note by the trial Court while adjudicating such
application."
14. It appears that on remand of the matter, it was expected
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from plaintiff to come out with as well as to show at given
point of time, at least prior to commencement of trial of suit,
despite due diligence on her part, she could not brought
amendment in the suit.
15. It appears from bear reading of impugned amendment
application that except the excuse of bona fide mistake on the
part of plaintiff, nothing has been stated as to why such
amendment could not be presented. It is expected when put to
the notice by this Court to the plaintiff and the matter was
remanded back to the Trial Court to decide amendment
application in light of proviso to Order VI Rule 17 of CPC that
plaintiff could have persuaded the Trial Court to consider due
diligence, if any.
16. It is surprising to know as observed in para 6.1 of
impugned order by the Trial Court that no submission with
regard to due diligence have been made by the plaintiff after
the matter was remanded back to the Trial Court. The relevant
observation of the Trial Court made in para 6.1 and 6.2 in its
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impugned order requires reproduction, which are as under:-
"[6.1] Considering the afore noted order of the Hon'ble High
Court of Gujarat, the matter kept for further hearing on the point of
'due deligence' as per the order passed below the application on
hand. As far as due deligence is concerned, the plaintiff has not
pleaded in her whole application; and therefore, the discussion on
the point of due deligence cannot be considered. Even after
passing of specific order, the Ld. Adv. for the plaintiff has not
made any submission with regard to due deligence. In
absence of any reason / fact which establish that in spite of
due deligence, the party could not have raised the matter
before the commencement of trial.
[6.2] Considering the facts of the pleading in the plaint, the
plaintiff has also not reserved their right under Order-II, Rule-2 of
the CPC. Earlier the application on hand had been allowed on the
grounds as mentioned in afore noted para-[1], so far as the
everments of due deligence is concerned, the plaintiff has not
mentioned a single word with regard to the same. Though this
Court believes that present application should be allowed to avoid
multiplicity of proceedings and meritourious disposal of the suit as
well as the grounds as reproduced in afore noted para-[1], in
absence of pleadings of the plaintiff about due deligence in whole
application, the said relief cannot be allowed. This Court is not in
a position to allow the present application in respect of due
deligence. It is settled law that the plaintiff cannot go beyound
his / her pleading. Therefore, in light of the proviso of Order-
VI, Rule-XVII of CPC, there is no option except to reject the
application."
17. In light of the aforesaid facts and the absence of any
submission made by the plaintiff as regards to due diligence
observed by plaintiff which prevented the plaintiff not to
submit at the relevant point of time, I am also of the view
that no gross error and or any jurisdictional error has been
committed by the Trial Court while rejecting the impugned
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application as in absence of showing due diligence by plaintiff,
Court could not have granted such amendment when presented
after commencement of trial.
18. So far as decisions, which are cited by learned advocate
Mr. Limbani in support of his submissions are concerned, there
is no cavil that rule of procedure is handmade of justice and a
liberal approach is required to be taken by the Trial Court
while dealing with such type of amendment applications, but
at the same time, a provision of law, thereby, right of Court
has been taken away to some extent cannot be ignored,
otherwise, such provision become otiose i.e. proviso to Order 6
R. 17 of CPC. Even if considering principle of harmonious
construction of interpretation of statue also once trial of the
suit commenced unless there is a due diligence shown by the
party, who sought amendment, no such amendment can be
granted by the court. The liberal approach may be considered
in relation to observance of due diligence subject to its shown
and argued by the party but in its absence, amendment can
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not be granted.
19. Thus, in absence of any cogent and convincing reasons
stated in the impugned application, which can satisfy the
conscious of the court that there was a due diligence on the
part of plaintiff in not to bring the amendment on record, as
well as unfortunately no submissions have been canvassed
before the Trial Court when the matter remanded back in that
regards on due diligence issue, this Court cannot further
examine the matter having limited jurisdiction under Article
227 of the Constitution of India.
20. Lastly, I would have to remind myself that this Court
while dealing with application filed under Article 227 of the
Constitution of India having its limitation and scope of
interference which is well defined by the Honourable Supreme
Court of India. [See Sameer Suresh Gupta TR PA Holder vs.
Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6
and 7) and Garment Craft v. Prakash Chand Goel, reported in
(2022) 4 SCC 181 (Para 15 and 16)].
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21. In light of the aforesaid discussion, observation and
reasons, I am of the view that there is no error, much less any
gross error and/or a jurisdictional error committed by Trial
Court while rejecting the impugned application filed below
Exhibit 85, thereby, not granted amendment, as sought for, by
the plaintiff as plaintiff has failed to show and submit due
diligence while bringing such amendment on record after
commencement of trial of suit.
22. Thus, in view of aforesaid, the present application is
meritless and requires to be dismissed and the same is hereby
DISMISSED. No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
