Gujarat High Court
Bhikhabhai Kodarbhai Patel vs Ramabhai Revabhai Patel on 16 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3413 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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BHIKHABHAI KODARBHAI PATEL
Versus
RAMABHAI REVABHAI PATEL
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Appearance:
MR MEHUL H RATHOD(701) for the Petitioner(s) No. 1
MR J V JAPEE(358) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
Date : 16/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Abhijeet Rathod for the
petitioner and learned Advocate Mr. H. J. Japee for the
respondent.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of
certiorari or any other appropriate writ, order or direction
for setting aside the order dated 27.01.2011 passed blow
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Exh. 122 of R.C.S. No. 354 of 1994 with all consequential
effect and further be pleased to allow the prayer made in the
application Exh. 122 of R.C.S. No. 354 of 1994 and be
pleased to pass an order directing the Ld. Court Addl. Civil
Judge, Himmatnagar to permit the petitioner to amend the
the plaint accordingly.
(B) During the pendency and final disposal of this petition,
Your Lordships may be pleased to stay the further
proceeding of R.C.S. No. 354 of 1994 pending before Ld.
Court Addl. Civil Judge, Himmatnagar.
(C) YOUR LORDSHIPS be pleased to pass such other order
and further orders as may be deemed just and proper in the
interest of Justice."
3. The parties will be referred to as per their original position
before the Trial Court.
4. Short Facts:
4.1. The petitioner herein is the original plaintiff of Regular Civil
Suit No. 354 of 1994, pending before the Civil Judge, Senior
Division, Himmatnagar, instituted against the respondent-
defendant, seeking declaration and prohibitory injunction in
relation to suit land.
4.2. Whereas, respondent herein had also instituted Regular Civil
Suit No. 82 of 1992 against the petitioner for very suit land,
which was partly decreed by the Trial Court in favour of the
respondent. The Trial Court vide its judgment and decree
dated 23rd August, 1999 though not granted any relief of
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specific performance as sought for in the suit but observed
that the defendant -petitioner herein should not disturb the
possession of the plaintiff-respondent herein and to recover
the possession of suit land without following due process of
law.
4.3. Such decree was challenged by the petitioner being the
defendant of that suit up to this Court, which was ultimately
confirmed by this Court while dismissing petitioner's Second
Appeal No. 174 of 2007 vide its judgement/ order dated 21 st
December, 2009. Nonetheless, this Court in the aforesaid
judgment and order observed that the petitioner herein can
certainly amend the plaint of the suit in question filed by him
and pray for decree for possession, which can be considered
in accordance with law on merits.
4.4. After getting such observation from this Court, the petitioner
herein has filed the impugned application below Exh.122
under Order 6, Rule 17 in his suit, thereby seeks necessary
amendment in the plaint as well as in the prayer clause. By
way of an amendment, the plaintiff wants to incorporate
prayer to the effect that if upon leading evidence, its prove
that defendant is occupying possession of suit land, in that
circumstance, pass decree of possession of the suit land in
favor of plaintiff thereby he can recover possession of suit
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land from the respondent-defendant. Such relief was earlier
not sought for when suit was filed on 08.12.1994, as
according to the case of the plaintiff, he was in possession of
the suit land.
4.5. The impugned amendment application came to be filed on
29th March 2010. The defendant has objected such
amendment by filing its reply below Exh.126 in the suit.
4.6. After hearing the parties at length, the Trial Court, vide its
order dated 27th January 2011, which is impugned in the
present application, rejected the impugned amendment
application. In view of the aforesaid rejection of the
impugned amendment application, the original plaintiff has
preferred the present writ application.
5. SUBMISSION OF THE PETITIONER-PLAINTIFF:
5.1. The learned Advocate Mr. Rathod would submit that the
impugned order is bad in law, inasmuch as, without
considering the facts and circumstances of the case and not
appreciating the provision of Order 6, Rule 17 which was
stood prior to its amendment, the Trial Court has rejected the
impugned amendment application.
5.2. The learned Advocate Mr. Rathod would further submit that
the Trial Court has failed to appreciate that after the passing
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of the decree in the year 1999 by the Trial Court in the suit
filed by the defendant, for first it came to surface that the
defendant is in possession of the suit land and a necessity
arise to seek an alternative prayer for getting possession of
the suit land from the defendant, for which an amendment
was necessary, which could not have been rejected.
5.3. The learned Advocate Mr. Rathod would further submit that,
as per the settled legal position of law, if a substantive suit
seeking relief which is sought for in the amendment is
permissible in law, to avoid any multiplicity of proceedings,
between the parties, the amendment needs to be allowed. It
is submitted that suit for recovery of possession would be
maintainable as 12 years were not over when impugned
amendment application came to be filed on 29-03-2010 as
decree in suit filed by respondent passed on 23.08.1999.
5.4. The learned Advocate Mr. Rathod would further submit that
the suit in question was instituted in the year 1994 and prior
to the amendment of Order 6, Rule 17 of the CPC, as per
settled law, at any stage of the proceedings, amendment
could have been permitted and as such, the amendment
should not be rejected unless it seriously prejudice to the
interest of the other side, which is not the case on hand.
5.5. The learned Advocate Mr. Rathod would further submit that
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the Trial Court has erroneously observed that by way of an
amendment, a diametrically opposite prayer has been sought
for by the plaintiff and on that basis, the amendment was
rejected, is a complete misconception of the Trial Court while
adjudicating the amendment application. It is stated that by
seeking an amendment, an alternative relief has been prayed
for due to subsequent event which has taken place after
institution of the suit, which requires to be taken note by the
Trial Court and in the interest of justice, it should have been
allowed the amendment as prayed for.
5.6. To buttress his arguments, he would rely upon the following
decision, which is as under:
(i) Sampath Kumar V/s. Ayyakannu and another reported in (2002) 7
Supreme Court Cases 559.
5.7. So, making the above submission, learned Advocate Mr.
Rathod would request this Court to allow this writ
application.
6. SUBMISSION OF THE RESPONDENT-DEFENDANT:
6.1. Per Contra, learned Advocate Mr. Japee would submit that as
such, there is no error much less any gross error of law
committed by the Trial Court while rejecting the impugned
amendment application and this Court should not exercise its
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power under Article 227 of the Constitution of India to
disturb the impugned order.
6.2. The learned Advocate Mr. Japee would further submit that by
seeking an amendment in the suit, the plaintiff is claiming a
diametrically opposite relief, as his suit was for seeking the
protection of his possession in relation to the suit land, but
now by way of amendment, he is seeking recovery of
possession of suit land from the defendant, which is nothing
but changing the nature of the suit.
6.3. The learned Advocate Mr. Japee would further submit that
assuming without admitting that such amendment is
permissible in law, the claim made by the plaintiff is time-
barred inasmuch as since 1994, the plaintiff was aware about
the position of suit land and if that be considered, claiming
possession from the defendant in the year 2010 would be
time-barred, then also, such amendment cannot be granted.
6.4. The learned Advocate Mr. Japee would submit that the Trial
Court has correctly observed that when the plaintiff is
claiming opposite prayer by way of amendment, the same is
not permissible in law and thereby, the Trial Court has not
committed any error while rejecting the impugned
application.
6.5. The learned Advocate Mr. Japee would further submit that
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even if this Court is inclined to allow the impugned
amendment application, all the rights and contentions of the
defendant in relation to the prayer sought to be added in the
suit be kept open and the question of limitation, which is
germane in the matter, may be kept open to be decided by
the Trial Court during the course of the trial, which
otherwise observed by the Honourable Supreme Court in the
cited decision in the case of Sampath Kumar (supra).
6.6. Lastly, learned Advocate Mr. Japee would submit that
amendment in present case may not be incorporated and
relate back of suit once granted but may be allowed to
operate from date of filing impugned amendment application.
6.7. Making the above submissions, learned Advocate Mr. Japee
would request this Court to reject the present replication.
7. No other and further submissions are made.
POINT FOR DETERMINATION
8. The short question falls for my consideration as to whether
any gross error of law and/or jurisdictional error was
committed by the Trial Court while rejecting the impugned
application filed by the plaintiff in the pending suit?
ANALYSIS
9. The facts which are narrated herein above are not in dispute.
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The suit was instituted in the year 1994, whereby, as per the
settled legal position of law, the unamended provision of
Order 6, Rule 17 would be applicable [See -State Bank of
Hyderabad vs. Town Municipal Council reported in
(2007) 1 SCC 765]. Even as per the unamended provision of
Order 6, Rule 17 of the CPC, ordinarily, an amendment which
is sought by the party can be allowed at any stage of the
proceedings. Of course, there are few exceptions when can
Court refuse to grant amendment i.e. if the amendment is
hopelessly time-barred, the nature of the suit gets changed,
any serious prejudice would be caused to the opponent, etc.
As such by now, it is well-settled legal position of law that
ordinarily, all amendments sought for should be allowed.
10. It would be apt to refer and rely upon the decision of Hon'ble
Supreme Court of India in the case of Life Insurance
Corporation Of India Versus Sanjeev Builders Private
Limited & Anr. reported in (2022) 16 SCC 1, which is
held thus:
"71. Our 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 hypertechnical 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.
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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.
71.10 Where the amendment changes the nature of the suit or the cause of
action, so as to set up an entirely new case, foreign to the case set up in the
plaint, the amendment must be disallowed. Where, however, the amendment
sought is only with respect to the relief in the plaint, and is predicated on
facts which are already pleaded in the plaint, ordinarily the amendment is
required to be allowed.
71.11 Where the amendment is sought before commencement of trial, the
court is required to be liberal in its approach. The court is required to bear
in mind the fact that the opposite party would have a chance to meet the
case set up in amendment. As such, where the amendment does not result
in irreparable prejudice to the opposite party, or divest the opposite party of
an advantage which it had secured as a result of an admission by the party
seeking amendment, the amendment is required to be allowed. Equally,
where the amendment is necessary for the court to effectively adjudicate on
the main issues in controversy between the parties, the amendment should
be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors.,2022
SCCOnLineDel 1897)"
(emphasis supplied)
11. The issue germane in the present writ application is also
covered by the decision of Hon'ble Supreme Court of India, in
the case of Sampath Kumar (supra), wherein it is observed
as under:
"[5] The short question arising for decision is whether it is permissible to
convert through amendment a suit merely for permanent prohibitory
injunction into suit for declaration of title and recovery of possession.
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[6] It is true that the plaintiff on the averments made in the application for
amendment proposes to introduce a cause of action which has arisen to the
plaintiff during the pendency of the suit. According to the defendant the
averments made in the application for amendment are factually incorrect and
the defendant was not in possession of the land since before the institution of
the suit itself.
[7] In our opinion, the basic structure of the suit is not altered by the
proposed amendment. What is sought to be changed is the nature of relief
sought for by the plaintiff. In the opinion of the trial Court it was open to the
plaintiff to file a fresh suit and that is one of the reasons which has prevailed
with the trial Court and with the High Court in refusing the prayer for
amendment and also in dismissing the plaintiff's revision. We fail to
understand, if it is permissible for the plaintiff to file an independent suit,
why the same relief which could be prayed for in a new suit cannot be
permitted to be incorporated in the pending suit. In the facts and
circumstances of the present case, allowing the amendment would curtail
multiplicity of legal proceedings.
[8] In Mst. Rukhmabai v. Lala Laxminarayan and others, AIR 1960 SC 335,
this Court has taken the view that where a suit was filed without seeking an
appropriate relief, it is a well settled rule of practice not to dismiss the suit
automatically but to allow the plaintiff to make necessary amendment if he
seeks to do so.
[10]. An amendment once incorporated relates back to the date of
the suit. However, the doctrine of relation-back in the context of
amendment of pleadings is not one of universal application and in
appropriate cases the court is competent while permitting an
amendment to direct that the amendment permitted by it shall not
relate back to the date of the suit and to the extent permitted by it
shall be deemed to have been brought before the court on the date on
which the application seeking the amendment was filed. (See
observations in Siddalingamma v. Mamtha Shenoy - (2001) 8 SCC
561)
[11] In the present case the amendment is being sought for almost 11 years
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after the date of the institution of the suit. The plaintiff is not debarred
from instituting a new suit seeking relief of declaration of title and recovery
of possession on the same basic facts as are pleaded in the plaint seeking
relief of issuance of permanent prohibitory injunction and which is
pending. In order to avoid multiplicity of suits it would be a sound exercise
of discretion to permit the relief of declaration of title and recovery of
possession being sought for in the pending suit. The plaintiff has alleged the
cause of action for the reliefs now sought to be added as having arisen to him
during the pendency of the suit. The merits of the averments sought to be
incorporated by way of amendment are not to be judged at the stage of
allowing prayer for amendment. However, the defendant is right in
submitting that if he has already perfected his title by way of adverse
possession then the right so accrued should not be allowed to be defeated by
permitting an amendment and seeking a new relief which would relate back
to the date of the suit and thereby depriving the defendant of the advantage
accrued to him by lapse of time, by excluding a period of about 11 years in
calculating the period of prescriptive title claimed to have been earned by
the defendant. The interest of the defendant can be protected by directing
that so far as the reliefs of declaration of title and recovery of possession,
now sought for, are concerned the prayer in that regard shall be deemed to
have been made on the date on which the application for amendment has
been filed."
(emphasis supplied)
12. Now, adverting back to the factual matrix of the present case,
it is undisputed that after passing of the decree in the year
1999 in favour of the defendant, need arise for the plaintiff to
seek decree of possession from defendant in addition to
prayers already made in the suit. Such decree, which was
passed in favour of the defendant in his suit, was confirmed
upto this Court when the second appeal of plaintiff-petitioner
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was dismissed. The observation made by this Court in its
judgment and order dated 21st December, 2009, passed in
Second Appeal No. 174 of 2007 has some bearing as regards
to granting of the amendment as sought for in the impugned
application. The relevant observation made by this Court in
para-6 of its aforesaid judgment and order reads as under:
"6. So far as the contention on behalf of the appellant-original defendant that
by the decree in question, the another suit filed against the original plaintiff
would become infructuous and/or there is an order passed by the Trial Court
holding the appellant to be in possession of the land in question is concerned,
it is to be noted that both the Courts below have concurrently found the
plaintiff to be in possession on appreciation of evidence; and a final decree
has been passed which is confirmed by the Appellate Court. The appellant
can certainly amend the plaint of the suit filed by him and pray for decree
for possession, which can be considered in accordance with law on merits."
13. In light of the aforesaid facts and circumstances of the
present case and position of law, the amendment which has
been sought for could not have been denied by the Trial
Court by observing that relief which is sought in the
amendment application is diametrically opposite to the
prayer which is made in the suit. As such, the nature of the
suit is not going to change as alleged in the argument of
learned Advocate Mr. Japee, inasmuch as relief of seeking
declaration and prohibitory injunction would remain as it is,
but there is an addition of the prayer for recovery of
possession of suit land. If the plaintiff can maintain the suit
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for recovery of possession along with the suit in question, if
such another suit would permissible in law, there is no harm
to allow the amendment, thereby the plaintiff can sought for
recovery of possession, thereby the Court can avoid
multiplicity of proceedings between the parties. As such, no
further discussion on this issue requires in light of what has
been already observed by the Honourable Supreme Court in
the case of Sampath Kumar (supra) on this issue.
14. At the same time, the submissions made by the learned
Advocate Mr. Japee as regards the rights and contentions of
the defendant being kept open and so also the issue of
limitation as regards entitlement of the plaintiff to get the
possession after this much period need some attention, in
asmuch as the concern of the defendant requires to be taken
care of when this Court granting relief in favour of the
plaintiff i.e. Allow the amendment application.
15. The doctrine of relation back is known in the rule of
procedure, inasmuch as whenever amendment is granted by
court, it relates back to the date of the suit. But in a case like
the present one, when there are serious disputed question of
fact and law as regards the entitlement of the plaintiff to
recover the possession of suit land from the defendant, and in
that regards issue of limitation raised whereby an issue arise
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as to whether such claim made by plaintiff is time barred or
not, then in such situation, keeping such issue of limitation
open to be decided by the Trial Court after giving opportunity
of hearing to all parties concerned, amendment though can
be granted, but it should be considered to be granted and
incorporated in the suit from the day on which the
amendment application was filed by the petitioner-plaintiff
i.e. 29th March 2010.
16. Thus, considering the aforesaid peculiar facts and
circumstances of the present case and nature of controversy
germane during pendency of suit and so also the nature of
amendment sought for as well as applying ratio of Sampath
Kumar (supra), I am of the view that amendment as sought
for by the plaintiff is to be allowed but such amendment will
be incorporated in the suit and the prayers in that regard
shall be deemed to have been made on the date on which the
application for amendment has been filed.
CONCLUSION
17. The upshot of the aforesaid observations, discussions and
reasons, the impugned order is required to be quashed and
set aside, which is hereby quashed and set aside, as it is
passed without noticing the scope and ambit of the power
available to the Trial Court under Order 6, Rule 17 of the
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CPC while adjudicating the amendment application and so
much so, it has been passed in ignorance of the law.
18. Consequently, the amendment application filed below
Exh.122 in Regular Civil Suit No. 354 of 1994, pending
before the Civil Judge, Senior Division, Himmatnagar, is
hereby allowed. The amendment which has been granted by
this Court would be effective from the date of the filing of the
impugned amendment application i.e. 29th March 2010 and
not from date of the suit.
19. The amended plaint be accordingly filed by the petitioner-
plaintiff within a period of 15 days from date of receipt of
copy of this order as provided under Order 6, Rule 18 of CPC.
Once such amended plaint will be filed by the plaintiff,
amended written statement, if any, be filed by the
respondent-defendant within 15 days thereafter.
20. All the rights and contentions of the respective parties are
hereby kept open to be decided by Trial Court in accordance
with law.
21. Once the amended pleadings are received by the Trial Court,
it may frame the necessary issues by adding it in existing
issues if any, including the issue of limitation which is now
sought to be raised by the defendant as discussed herein
above. It is also open for the parties to submit suggested
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issues before the Trial Court concerned.
22. As the suit is of the year 1994, it is directed to the Trial Court
to expedite the hearing of the suit and all parties concerned
shall extend their support and cooperation to the Trial Court
for the expeditious adjudication of the suit.
23. Thus, in view of the aforesaid, the present writ application is
hereby partly allowed to the aforesaid extent. Rule is made
absolute accordingly. No order as to costs. Interim relief, if
any, stands vacated herewith.
(MAULIK J.SHELAT,J)
Nilesh
