Gujarat High Court
Dhirubhai Bhavanbhai vs Savitaben Gajendrasinh Wadher on 4 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2409 of 2015
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DHIRUBHAI BHAVANBHAI & ORS.
Versus
SAVITABEN GAJENDRASINH WADHER & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 1
MR AR THACKER(888) for the Petitioner(s) No. 1.1,1.2,1.3,1.4
MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 4
MR RR TRIVEDI(941) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 5
PRAKASH G TRIVEDI(7306) for the Respondent(s) No. 3.1,3.2,3.3,3.4,3.5
VMP LEGAL(7210) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/08/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Vimal K.
Patel waives service of notice of rule on behalf of respondents
No. 1 & 2.
2. At the outset, learned advocate Mr. R.R. Trivedi appearing
for respondent No.4 states that during the pendency of the
present writ application, respondent No.4 died and his legal heirs
are not brought on record in this matter.
3. Heard learned advocate Mr. A.R. Thacker for the petitioners
and learned advocate Mr. Vimal K. Patel for respondents No. 1 &
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4. The present writ application is filed under Article 227 of the
Constitution of India seeking following relief :-
"(A) To allow this petition.
(B) To quash and set aside the order dated 25.7.2013 passed by
the Learned Principal Senior Civil Judge, Rajkot below Ex.78 in
Regular Civil Suit No.51 of 2009 rejecting amendment application and
further be pleased Po allow the said application for amendment of
plaint and permit the petitioner to amend the plaint as per the prayer
made in Ex. 78 an application in Regular Civil Suit No.51 of 2009
pending the court of Principal Senior Civil Judge, Rajkot.
(C) Pending admission, hearing and final disposal of this petition,
be pleased to stay the further proceedings of Regular Civil Suit No.51
of 2009 pending on the file of Learned Principal Senior Civil judge,
Rajkot for the reasons stated in the Memo of Petition and in the
interest of justice.
(D) To award the cost of this petition.
(E) To grant such other and further relief as may be deemed fit by
this Hon'ble Court in the interest of justice."
Facts of the case
5. The petitioners herein are original plaintiffs whereas
respondents herein are original defendants of Regular Civil Suit
No. 51 of 2009 pending before the Principal Senior Civil Judge,
Rajkot. The suit is filed seeking declaration and injunction,
wherein the plaintiffs sought their 50% share in undivided suit
property. It appears that during the pendency of the suit, an
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impugned amendment application came to be filed below Exh. 78
by the plaintiffs. The plaintiffs want to amend the suit prayer
whereby, a sale deed executed in favour of defendants No.1 & 2
by the defendants No. 3 to 5 which was registered on 30.07.1998
sought to be challenged.
5.1 It further appears that one Special Civil Suit No. 56 of 2001
filed wherein for the first time plaintiffs came to know in the year
2007 about execution of registered sale-deed. Further, the
mutation entry came to be recorded in the revenue record on
26.04.2005 wherein such entry was objected by the plaintiffs. As
per the aforesaid revenue entry, plaintiffs were in knowledge of
such sale-deed in the year 2005 itself.
5.2 Be that as it may, the suit came to be filed in the year 2009
wherein there was no challenge to the sale-deed in question. So,
by way of the impugned amendment application, which came to
be filed on 08.01.2013 for the first time, the plaintiffs seeking
permission of the trial Court to allow them to amend the plaint,
thereby they sought declaration to the effect that registered
sale-deed executed in favour of defendants No. 1 & 2 on
30.07.1998 to be declared null and void. Such amendment
application was objected by the defendants.
5.3 After hearing the parties, the trial Court vide its order
dated 25.07.2013 rejected it mainly on the ground that it is
barred of limitation and so also nature of suit get changed by
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granting such amendment.
5.4 Feeling aggrieved and dissatisfied with the aforesaid order,
the plaintiffs have challenged the present writ application.
Submission of the petitioners
6. Learned advocate Mr. A.R. Thacker for the petitioners
would submit that due to inadvertence on the part of the
plaintiffs, at the time of filing suit in the year 2009, the plaintiffs
could not question the sale-deed executed in the year 1998 for
which the impugned amendment application came to be filed. It
is submitted that as per settled legal position of law, all
amendments should have been liberally allowed by the trial
Court.
6.1 Learned advocate Mr. Thacker would submit that no
prejudice would cause to the defendants, if the amendment
sought for, could have been granted by the trial Court, inasmuch
as the defendants have all rights to contest the claim of plaintiffs
by leading their evidence.
6.2 Learned advocate Mr. Thacker would further submit that as
per law laid down by the Hon'ble Apex Court that the
amendment application could not have been rejected as the issue
of limitation. As such, it always considered as a mixed question of
law and fact and to decide such issue, the evidence is required to
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be led by the parties.
6.3 So, making the above submission, learned advocate Mr.
Thacker would request this Court to allow the present writ
application.
6.4 To buttress his argument, learned advocate Mr. Thacker
cited a decision of Hon'ble Apex Court in the case of Life
Insurance Corporation of India Vs. Sanjeev Builders Pvt.
Ltd. reported in (2022) 16 SCC 1.
Submission of the respondents
7. Per contra, learned advocate Mr. Vimal K. Patel for the
contesting respondents would submit that the amendment
sought is hopelessly time barred, inasmuch as the plaintiffs were
aware about the execution of sale-deed in question for the first
time in the year 2005 when they have objected the revenue entry
mutated in favour of defendants No. 1 & 2. So, as per Article 58
read with 59 of the Indian Limitation Act, within three years from
the date knowledge of execution of sale-deed, they were
required to challenge the sale-deed, which is not done so in the
present case.
7.1 Learned advocate Mr. Patel would further submit that as
recorded by the trial Court that when Special Civil Suit No. 56 of
2001 in which sale - deed in question came to be produced, such
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fact was even came within the knowledge of the plaintiffs in the
year 2007 and having so filed the suit in the year 2009, within
period of limitation i.e. 3 years, the plaintiffs could have
questioned the sale deed in question, which is undisputedly not
challenged.
7.2 Learned advocate Mr. Patel would further submit that
when the claim made in the impugned amendment application is
hopelessly time barred then, no requirement to lead evidence to
prove such claim. It is submitted that such amendment could not
have been granted, which is correctly not granted by the trial
Court.
7.3 To buttress his argument, learned advocate Mr. Patel would
refer and rely upon the decision of this Court in the case of
Ambaben D/o Balubhai Mohanbhai Patel and W/o Thakorbhai
Vallabhbhai Patel and Ors. Vs. Deceased Ratanben Wd/o
Balubhai Mohanbhai Patel passed on Special Civil
Application No. 2323 of 2024 dated 07.04.2025 reported in
2025 (0) GUJHC 21093.
7.4 Making the above submission, learned advocate Mr. Patel
would request this Court to reject the present writ application.
Point for determination
Whether in the facts and circumstances of the case, the trial
Court has committed any gross error of law and or jurisdictional
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error while rejecting the impugned amendment application filed by
the plaintiffs ?
Analysis
8. The facts which are narrated herein above are not in
dispute. It is undisputed that the suit came to be filed by the
plaintiffs in the year 2009, wherein there is clear reference of
sale-deed executed in favour of defendants No. 1 & 2 in the year
1998 was made. The facts further suggests that it was well within
the knowledge of the plaintiffs about execution of sale deed in
question by defendants No. 3 to 5 in favour of defendant No.1 &
2 though executed in the year 1998 but made known to them
when they had first objected the revenue entry mutated in
favour of defendants No. 1 & 2 in the year 2005.
8.1 As per Article 59 of the Limitation Act, a suit for
cancellation or setting aside of an instrument must be filed
within the prescribed limitation period. Similarly, under Article 58
of the Limitation Act, in a suit where any declaration is sought,
the period of limitation begins to run when the right to sue first
accrues.
8.2 The trial Court has correctly observed in its impugned order
that when the plaintiffs came to know about such execution of
sale-deed in question in the year 2007 when its copy was
produced in a Special Civil Suit No. 56 of 2001, within three years
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from that date, they could have questioned the sale-deed.
Furthermore, the suit came to be filed in the year 2009, even
assuming for the time being that date of knowledge gathered in
the year 2009 having referred sale deed in question in the plaint
itself also, three years would have been over by 2012. Whereas,
undisputedly the impugned amendment application came to be
filed in the year 2013 i.e. 08.01.2013 which is hopelessly time
barred.
8.3 The issue germane in the application is no longer remain
res-integra as already decided by this Court in the case of
Ambaben (supra), wherein after placing reliance upon aforesaid
provisions of limitation act and the various decisions of the
Hon'ble Apex Court, this Court held thus.
"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 Time from which period
Limitation begins to run
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PART III.--SUITS RELATING TO DECLARATIONS
58. To obtain any other Three When the right to sue
declaration Years first accrues
PART IV.--SUITS RELATING TO DECREES AND
INSTRUMENTS
59. To cancel or set aside Three When the facts entitling
an instrument or decree or Years the plaintiff to have the
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 When the right to sue
no period of limitation is years 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.
(1) Whether the amendment sought is imperative for proper and
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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)
9. Likewise, the Hon'ble Apex Court in the case of
Sanjeev Builders Pvt. Ltd. (supra), which in fact relied upon
by learned advocate Mr. Thacker, 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 :-
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"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
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
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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)
10. This Court has also recently had an occasion to decide
veryissue 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,
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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)
11. When the aforesaid dates and events are remain
undisputed on record, no error can be found in the impugned
order, inasmuch as the amendment sought by the plaintiffs is
hopelessly time barred which could not have been granted
which is correctly not granted by the trial Court.
12. So far as the other ground on which the amendment
application came to be rejected i.e. change of nature of suit,
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considering the peculiar facts and circumstances of the case,
this Court would not like to touch upon it.
Conclusion
13. In view of the aforesaid observation and discussion and
reasons, this Court comes to only one conclusion that
impugned order does not suffers from any gross error of law
and or any jurisdictional error.
14. Thus, this Court does not any merit in the present writ
application, which requires to be rejected, which is hereby
rejected. Interim relief granted earlier, if any, stands vacated.
Rule is discharged. No order as to costs. The trial Court
should proceed with the suit in accordance with law.
(MAULIK J.SHELAT,J)
SALIM/
