Gujarat High Court
Pravinbhai Shantilal Patel vs Patel Natvarbhai Ambaram Poa Of Patel ... on 3 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14069 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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PRAVINBHAI SHANTILAL PATEL
Versus
PATEL NATVARBHAI AMBARAM POA OF PATEL BHANUPRASAD & ANR.
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Appearance:
MR SHIVANG M SHAH(5916) for the Petitioner(s) No. 1
MS DHARA M SHAH(5546) for the Petitioner(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
MR NIKUNT K RAVAL(5558) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/07/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"a. The Hon'ble Court may be pleased to issue a writ of or in the
nature of certiorari or any other appropriate writ, order or direction
quashing and setting aside the impugned order dated 10.8.2010
passed by the 6th Additional Senior Division Civil Judge, Mehsana
below Exh. 53.
b. Pending, hearing and or final disposal of this petition Your
Lordships be pleased to stay the proceedings of the Special Civil Suit
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No. 49/2005 pending before the 6 th Additional Senior Division Civil
Judge, Mehsana.
c. To allow the Amendment of pleadings/plaint in Special Civil Suit
No. 49 of 2005 before the 6 th Additional Senior Division Civil Judge,
Mehsana.
d. To pass such other and further orders necessary in the interest
of justice."
2. The parties will be referred as far as possible as per
their original position in the suit.
Short Facts of the case
3. The petitioner herein is original plaintiff, whereas
respondents are original defendants No. 1 & 3 respectively
of Regular Civil Suit No. 49 of 2005 pending before the 6 th
Additional Senior Division, Civil Judge, Mehsana. The suit is
filed seeking specific performance of agreement to sell
executed by the plaintiffs with original defendants on
22.02.2004, whereas the suit came to be filed on 16.07.2005.
3.1 It appears that during the pendency of suit, original
defendants have executed sale-deed in favour of respondent
No.2 herein, thereby, he is joined in the suit as defendant
No.3 and accordingly prayers are also amended whereby
plaintiff has questioned his sale-deed.
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3.2 The suit is progressed further and at the time of
recording of oral evidence of plaintiff, he has filed impugned
amendment application under Order 6 rule 17 of CPC,
thereby, requested to allow him to amend pleading in the
suit. Nonetheless, no additional prayer has been sought by
the plaintiff. The impugned application was opposed by the
defendants by filing their reply below Exh. 55 contending
inter-alia that by granting such amendment, nature of suit
gets change and fill lacuna in the pleading of plaintiff such
amendment is now sought for, which cannot be granted.
3.3 After hearing the parties at length, the trial Court vide
its order dated 10.08.2010 has rejected the impugned
application, which is challenged by way of the present writ
application.
Submission of the petitioner-plaintiff
4. Learned advocate Ms. Dhara M. Shah for the petitioner
would submit that the impugned application is ex-facie,
erroneous, perverse and contrary to the provision of law,
which requires to be interfered by this Court while exercising
its power under Article 227 of the Constitution of India. She
would further submit that by no stretch of imagination
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allowing amendment as sought for, nature of suit gets
change.
4.1 Learned advocate Ms. Shah would further submit that
the trial Court has erroneously observed that by granting any
amendment application, nature of suit gets change, is
completely fallacious and perverse in asmuch as no
additional prayer is sought for to be added in the plaint by
way of the amendment. She would further submit that even
after granting amendment, the suit would remain for specific
performance for agreement to sell and amendment as only
explanatory in nature could not have been disallowed.
4.2 Learned advocate Ms. Shah would further submit that
there is some delay in seeking amendment, would not be
ground to reject it and as per settled legal position of law,
the impugned order requires to be quashed and set aside.
4.3 At last, learned advocate Ms. Shah would submit that as
such there are no reasons assigned by the trial Court so far
as its observation about change of nature of suit in a case
where amendment would be allowed and so also while
observing that the amendment sought for by the plaintiff
was within his knowledge at the time of filing suit, and such
reasons cannot be a ground of rejection of impugned
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application. So, learned advocate Ms. Shah would request
this Court to remand the matter back to the trial Court.
Submission of respondent No.2-defendant No.3
5. Per contra, learned advocate Mr. Nikunt Raval
appearing for the respondent No.2- defendant No.3 would
submit that there is no error committed by the trial Court
which requires no interference by this Court. He would
further submit that by amendment which has been sought
for, is not only clarificatory and or explanatory in nature as
alleged but in fact filling up lacuna which remain on the part
of the plaintiff while submitting plaint, which cannot be done
away of an amendment. He would further submit that as
such the trial Court has observed that the facts which are
mentioned in the impugned application were in fact within
the knowledge of plaintiff and at the stage of his oral
evidence, such amendment is presented which could not
have been allowed.
5.1 Learned advocate Mr. Raval would candidly submit that
there are no specific reasons assigned by the trial Court to
reach to conclusion that by granting amendment, nature of
suit would get change. He would further submit that in any
case, if this Court is of the opinion that the impugned order
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suffers from no reason, then in such a situation, if this Court
would remand the matter back to the trial Court, the
defendants may be given an opportunity to oppose the
impugned application in accordance with law.
6. No other and further submissions have been made by
the learned advocates for the respective parties.
Analysis
7. That facts which are narrated herein above are not in
dispute. The impugned application came to be filed at the
stage of recording of his evidence and as such his evidence is
not yet over. Further reading of amendment, which is sought
for, would not come to change the nature of suit in any
manner whatsoever, inasmuch as the plaintiff is not seeking
for any additional relief thereby, question to change nature
of suit would not get attracted.
8. At the same time, mere delay in representing
amendment application could not be ipso-facto a ground to
reject the impugned application unless any prejudice would
cause to the other side. True, it is that if the trial commenced
and amendment application came to be filed by the parties,
the proviso of Order 6 rule 17 of CPC would be applicable,
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thereby party to seek amendment requires to show
observance of due diligence at his end while submitting
amendment application. Such aspect of the matter was
completely lost sight by the trial Court having not touched
upon it while rejecting the impugned application.
9. Thus, in view of the aforesaid, neither nature of suit
would get change nor any other legal aspect of the matter as
regards nature of amendment nor if it allowed, then any
prejudice would cause to the defendants or not, were
examined by trial Court while passing impugned order. As
such all these factors requires to be taken into account by
the trial Court while adjudicating the impugned application,
which is not done so.
10. In view of the aforesaid, I am of the view that the
impugned order requires to be quashed and set aside and
the matter is required to be remanded back to the trial Court
for fresh consideration.
11. The upshot of the aforesaid observations and reasons,
the impugned order dated 10.8.2010 passed by the 6th
Additional Senior Division Civil Judge, Mehsana below Exh.
53 in Special Civil Suit No. 49 of 2005, is hereby quashed and
set aside. Consequently the impugned application filed
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below Exh. 53 in the aforesaid suit is hereby restored back on
its file.
12. The trial Court is hereby directed to decide afresh the
impugned amendment application filed below Exh.53 in
Special Civil Suit No. 49 of 2005 as early as possible
preferably within a period of one month from the date of
receipt of copy of this order as the suit is of the year 2005,
albeit after giving an opportunity of hearing to all parties
concern.
13. The trial shall decide afresh aforesaid impugned
amendment application keeping in mind the ratio laid down
by Hon'ble Apex Court in the case of Life Insurance
Corporation of India Vs. Sanjeev Builders Pvt. Ltd.
reported in (2022) 16 SCC 1.
14. The parties are at liberty to submit their oral as well as
written submission in support of their case before the trial
Court.
15. The trial Court is hereby directed to decide the
impugned amendment application in accordance with law
without being influenced by any of the observations so made
by this Court.
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16. In view of the aforesaid, the present writ application is
allowed. Rule is made absolute to the aforesaid extent.
(MAULIK J.SHELAT,J)
SALIM/
