Gujarat High Court

Rameshbhai Venilal Dalal vs Himatbhai Mohanbhai Borad on 2 May, 2025

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                              C/SCA/19148/2023                               ORDER DATED: 02/05/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 19148 of 2023

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                                                    RAMESHBHAI VENILAL DALAL
                                                             Versus
                                                HIMATBHAI MOHANBHAI BORAD & ORS.
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                       Appearance:
                       MR SALIL M THAKORE(5821) for the Petitioner(s) No. 1
                       APURVA K JANI(7057) for the Respondent(s) No. 1
                       NOTICE SERVED for the Respondent(s) No. 2,4,5
                       NOTICE UNSERVED for the Respondent(s) No. 3
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                          CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 02/05/2025

                                                          ORAL ORDER

1. Rule returnable forthwith. Learned Mr. Apurva K. Jani waives service of notice of rule on behalf of respondent No.1.

2. Though served, none appears on behalf of respondents No. 2, 4 & 5 and respondent No.3 is unserved. Nonetheless, the presence of such respondents is not required for adjudication of the present writ application. It is reported that suit is proceeded ex-parte against respondent No.3 having not appeared in the suit.

3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-

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"A) That the Hon'ble Court be pleased to quash and set aside order dated 21.8.2023 below Exhibit 61 passed by the 3 rd Additional Senior Civil Judge, Navsari in Regular Civil Suit No. 4 of 2016 and be pleased allow the petitioner to carry out the amendments prayed for in the application at Exhibit 61;

B) That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay order dated 21.8.2023 below Exhibit 61 passed by the 3 rd Additional Senior Civil Judge, Navsari in Regular Civil Suit No. 4 of 2016 (produced at Annexure A) and the further proceedings of Regular Civil Suit No. 4 of 2016;

C) For ad-interim reliefs in terms of prayer B above;

D) For such other and further reliefs as the Hon'ble Court may deem just and proper in the facts and circumstances of the case."

Short facts of the case

4.0 The petitioner happens to be plaintiff of Regular Civil Suit No. 4 of 2016 instituted against the respondents herein pending before the Senior Civil Judge, Navsari. The respondent No.1 happens to be defendant No.1 & 2 appeared then file counter claim.

4.1 The plaintiff has filed suit seeking recovery of amount alleged to have not received by him from defendants No. 1 to 3 pursuance to the registered sale-deed executed by the plaintiff in favour of defendants No. 1 to 3 on 11.01.2013 and also prayed for other consequential reliefs. Defendants No. 1 & 2 filed a counter claim and sought for several reliefs, thereby, sought declaration and also asked amount which

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was overpaid by them as accordingly to defendants No. 1 to 3, there was a deduction of land sold by the plaintiff to them due to incorporation of suit land come within the limits of Navsari Urban Development Authority (NUDA), whereby, there was 40% deduction of total area i.e. 31,275 sq.ft., for which they are entitled for such amount allegedly paid by them to the plaintiff.

4.2 The plaintiff appears to have filed his written statement to such counter claim. The issues are framed by the trial Court but before commencement of oral evidence of plaintiff, he has filed amendment application below Exh. 61 on 07.03.2023 to get it amend his written statement filed in counter claim of defendants No.1 & 2.

4.3 After hearing the parties, the trial Court vide its order dated 21.08.2023 has rejected the amendment application filed below Exh. 61 by the plaintiff.

4.4 Being aggrieved and satisfied with the aforesaid impugned order, the present writ application is filed.

Submission of the petitioner

5. Learned advocate Mr. Salil M. Thakore for the petitioner would submit that the trial Court has erroneously

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rejected the impugned amendment application without appreciating the nature of amendment sought for by the plaintiff in his pleadings. He would further submit that the amendment sought for is only clarificatory in nature, requires to have been granted, thereby, truth comes on record and would be paramount consideration of the Court while adjudicating the amendment application.

5.1 Learned advocate Mr. Thakore would further submit that no prejudice would have cause to defendants No.1 & 2 if amendment sought for, could have been granted. He would further submit that considering the nature of controversy involved in the matter, notification issued by NUDA is required to be brought on record and amendment is nothing but to clarify its non-applicability to the facts pleaded by defendants No. 1 & 2 in their counter claim. The notification allowed to be brought on record would clarify the controversy germane in the counter claim and it would be in the interest of justice that amendment sought for, may be granted. He would further submit that notification dated 18.10.2016 issued by the Government of Gujarat is a public documents, no prejudice would cause to defendants No. 1 to 3 as such they are referring such fact in their counter claim.

5.2 Learned advocate Mr. Thakore would further submit that as per settled legal position of law such amendment

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ought to have been granted as per Order 6 rule 17 of CPC, as such amendment can be granted at any stage of proceedings, especially when trial has not commenced, the trial Court should consider such application liberally, thereby, it can advance justice to the party.

5.3 Making the above submission, learned advocate Mr. Thakore would request this Court to allow the present writ application.

6.0 Per contra, learned advocate Mr. Apurva K. Jani for respondent No.1- defendant No.1 would submit that as such there is no error committed by the trial Court while rejecting the impugned application and this Court while exercising its power under Article 227 of the Constitution of India may not interfere with the well-reasoned order passed by the trial Court. He would further submit that in the present case, the impugned amendment application is filed after framing of the issues, thereby the trial has commenced in advance and any due diligence not observed by the plaintiff not to bring such amendment and at relevant point of time prior to commencement of trial, the amendment application is correctly rejected.

6.1 Learned advocate Mr. Jani would further submit that the plaintiff is required to show and disclose due diligence

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not to bring such amendment at relevant point of time as it was very much within the knowledge of the plaintiff when confronted with the notification issued by the NUDA referred by the defendant No.1 in his counter claim.

6.2 The plaintiff having filed his written statement on 03.09.2019 was having the knowledge of notification dated 18.10.2016 could have easily brought on record and thereby, could have amended his written statement to counter claim. So, learned advocate Mr. Jani would further submit that there is delay in bringing such amendment on the part of the plaintiff, which is remain unexplained, whereby, the trial Court has correctly rejected the impugned delay application.

6.3 Making the above submission, learned advocate Mr. Jani would request this Court to reject the present writ application.

7. No other and further submissions have been made by the learned advocates for the respective parties.

ANALYSIS

8. The short controversy involved in the present writ application as to whether the trial Court has correctly rejected the amendment application filed by the plaintiff,

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thereby denied amendment in his written statement to the counter claim?

8.1 The facts which are observed hereinabove, are not in dispute, except the fact as to whether the trial was commenced when the impugned delay application was filed by the plaintiff or not?.

8.2 It is not in dispute that the impugned amendment application came to be filed after framing of issues but filed prior to submission of affidavit in examination-in-chief i.e. oral evidence of plaintiff. In this factual situation, as per settled legal position of law, the trail was not commenced when the impugned amendment application came to be filed by the plaintiff.

8.3 The issue germane in the application is no longer remain res-integra as recently this Court in its one of judgement dated 20.03.2025 passed in a case of CHAMPABEN D/O GOVANBHAI KALABHAI WD/O BACHUBHAI GOMANBHAI V/S KHUSHMANBHAI CHANDUBHAI SINCE DECD THROUGH LHR & ORS in Special Civil Application No. 16214 of 2024 held as under :-

"24. Thus, after going through the aforesaid decisions of Hon'ble Apex Court and High Court of Calcutta and Bombay, it is by now

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well settled position of law that commencement of trial of civil suit in relation to proviso to Order 6 rule 17 of CPC would be a date of filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff and not only date of the settlement of issues."

8.4 Thus, in view of the aforesaid position of law, the impugned amendment application is considered to be filed prior to commencement of trial, thereby, proviso Order 6 rule 17 of CPC would not be applicable, accordingly submission made by the learned advocate Mr. Apurva Jani for the respondent is not acceptable which is hereby rejected.

8.5 After going through the amendment as sought for in the impugned delay application, prima-facie it appears that amendment sought for is only clarificatory in nature and based upon notification issued by the Government of Gujarat as referred in the amendment application. True, such notification was dated 18.10.2016 and when the plaintiff has filed his written statement on 03.09.2019 to the counter claim of defendants No. 1 & 2, it could have easily procured such notification and thereby he could have amended his written statement as the case may be. Nonetheless, mere delay in bringing such amendment could not be ground to deny it as amendment especially brought before the trial has

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not commenced and there would not be any serious prejudice cause to the defendants No.1 to 3, it should have been granted by trial Court.

8.6 The law on issue of amendment is fairly well settled by different pronouncements of judgments of Hon'ble Apex Court, but I would like to refer few to resolve controversy germane in the matter. In the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1 after revisiting its decision, the Hon'ble Apex Court on the issue of amendment 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 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,

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(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.

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

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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 SCC OnLine Del 1897)"

(emphasis supplied)

8.7 Likewise, in the case of Varun Pahwa Vs. Renu Chaudhary reported in (2019) 15 SCC 628 has observed as under :-

"8. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations."

(emphasis supplied)

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8.8 Further, in the case of Abdul Rehman and another Vs. Mohd. Ruldu and others reported in (2012) 11 SCC 341 has observed and held as under :-

"10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-

"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."

It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them

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and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment." (emphasis supplied)

8.9 Thus, conjoint reading of the aforesaid decisions of the Hon'ble Apex Court and having so held that amendment application has been filed prior to commencement of trial then, approach of trial Court ought to have liberal rather than hyper technical approach, especially no prejudice could have caused by granting such amendment to the other side.

8.10 So, having taking into account and entire facts and circumstances of the case and nature of amendment, I am of the view that it should have been allowed as it is only clarificatory in nature and no prejudice would cause to defendants No.1 & 2 by granting such amendment having filed before commencement of trial. As such granting such amendment would facilitate trial Court thereby, can effectively resolved the controversy involved between the

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parties.

8.11 At this stage, it is also profitable to rely upon recent past decision of Hon'ble Apex Court in a case of Sugandhi (dead) by LRs & Anr v/s P Rajkumar Rep by His Power Agent Imam Oli reported in (2020) 10 SCC 706 wherein held as under,

"[9] It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute....." (emphasis supplied)

8.12 At the same time, it is equally true that High Court should sparingly exercise its power under Article 227 of the Constitution of India only in appropriate cases in order to keep the subordinate courts within the bounds of their authority [Waryam Singh v/s Amarnath - AIR 1954 SC 215]. Having arrived at the aforesaid conclusion and having found that trial Court has committed procedural irregularity which requires to be corrected by this Court while exercising its power under Article 227 of the Constitution of India thereby, interference requires in the impugned order.

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Conclusion

9. The upshot of the aforesaid discussion, observations, and reasons, following order is passed :-

(i) The impugned order dated 21.8.2023 below Exhibit 61 passed by the 3rd Additional Senior Civil Judge, Navsari in Regular Civil Suit No. 4 of 2016 is hereby quashed and set aside.

(ii) Consequently, the impugned amendment application filed below Exh. 61 by the plaintiff in Special Civil Suit No. 4 of 2016 is hereby allowed, thereby, the plaintiff is permitted to amend his written statement filed into counterclaim as prayed for. Necessary amendment be carried out in such written statement within a period of seven days from the date of receipt of copy of this order.