Gujarat High Court
Prafulbhai Jagdishchandra Agrawal vs Thakore Mahotji Bhulaji Through His Lhr on 13 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 154 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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PRAFULBHAI JAGDISHCHANDRA AGRAWAL
Versus
THAKORE MAHOTJI BHULAJI THROUGH HIS LHR & ORS.
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Appearance:
MR GALAV C SHARMA(5489) for the Petitioner(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 10.1
NOTICE SERVED for the Respondent(s) No. 7
NOTICE UNSERVED for the Respondent(s) No. 4.1,6,8,9
RONITH JOY(9560) for the Respondent(s) No.
10.1.1,10.1.2,10.1.3,11,12,13,3.1,3.3
SIDDHARTH R KHESKANI(9483) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,2
UNSERVED EXPIRED (N) for the Respondent(s) No. 3.2,5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 13/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.
Siddharth R. Kheskani and learned advocate Mr. Ronith Joy
waive service of notice of rule on behalf of respective
respondents for who they are appearing.
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2. Heard learned advocate Mr. Galav C. Sharma for the
petitioner, learned advocate Mr. Siddharth R. Kheskani for
respondents No. 1.1 to 2 and learned advocate Mr. Ronith
Joy for the respondents No.10.1 to 13, at length.
3. With the consent of the parties, the matter is taken up
for final hearing. As far as possible, parties will be referred as
per their original position in the suit.
4. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"A) issue a writ of Certiorari or any other appropriate writ, direction
or order quashing and setting aside the impugned order dated
08.11.2023 passed by the Ld. Additional Senior Civil Judge, Kalol in
Application below Exhibit 197 in Regular Civil Suit No. 284 of 1993
being ANNEXURE "T";
B) pending admission, hearing and final disposal of this petition,
stay further proceedings in Regular Civil Suit No. 284 of 1993;
C) grant such other and further relief or reliefs as may be deemed
just and expedient in view of the facts and circumstances of the case;
D) award costs of this petition to the Petitioner."
Short Facts of the case
5. The petitioner herein is the original defendant No.9 of
Special Civil Suit No. 310 of 1993 which converted into
Regular Civil Suit No. 284 1993, whereas respondent Nos. 1.1
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to 2 are original plaintiffs and rest of respondents herein are
original defendant Nos. 1 to 8.
5.1 The petitioner herein happens was not originally joined
in the suit but came to be joined as defendant No.9 vides an
application below Exh. 28 on dated 30.12.1994 filed by
plaintiffs, thereby joined in the suit proceedings.
5.2 The plaintiffs filed suit seeking performance of an
agreement to sell executed on 12.10.1990 by defendant Nos.
1 to 8. The defendants No.1 to 8 appears to have executed
registered sale-deed in favour of defendant No.9 on
29.10.1993, which is subsequent to filing of suit i.e. on
13.10.1993, albeit its execution prior to the institution of
suit.
5.3 The amendment application came to be filed by the
plaintiffs below Exh. 197 on 14.02.2000, thereby, they
sought to challenge the said registered sale-deed executed
by defendants No. 1 to 8 in favour of defendant No.9. Such
amendment application was opposed by the defendants on
all counts.
5.4 After hearing the parties, the trial Court vides its order
dated 08.11.2023 allowed the impugned amendment
application filed below Exh. 197 in the aforesaid suit. Hence,
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the present writ application.
Submission of the petitioner- defendant No.9
6. Learned advocate Mr. Sharma would submit that the
trial Court has committed a manifest error of law inasmuch
as jurisdictional error by allowing impugned amendment
application, which otherwise could not have been done so, as
amendment sought for is ex-facie time barred. It is
submitted that the plaintiffs were quite aware about the
registration of sale deed executed by the defendants No. 1
to 8 in favour of defendant no.9 in the year 1994 itself,
thereby, the amendment sought is hopelessly time barred.
6.1 Learned advocate Mr. Sharma would further submit
that the plaintiffs in their application filed below Exh. 28 on
30.12.1994, clearly spelt out and stated that when
defendant No. 1 to 8 have sold the land to defendant No. 9
and third parties may try to threaten plaintiffs to remove
them from suit land, so filed said application.
6.2 Learned advocate Mr. Sharma would further submit that
there was a Regular Civil Suit No. 268 of 1994 came to be
filed by the defendant No.9 against plaintiffs wherein Para-1
itself, there was reference of execution of sale-deed by the
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defendants No.1 to 8 in favour of defendant No.9. So,
according to the learned advocate Mr. Sharma, right to sue
first accrue in favour of the plaintiffs to challenge the sale-
deed executed in favour of defendant No. 9 in the year 1994
itself and thereby, an amendment sought for on dated
14.02.2000 thereby, challenged the sale-deed of defendant
No.9 is hopelessly time barred.
6.3 To buttress his argument, learned advocate Mr. Sharma
would refer and rely upon the following decisions :-
(i) Life Insurance Corporation of India Vs. Sanjeev
Builders Pvt. Ltd. reported in (2022) 16 SCC 1.
(ii) Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi
reported in 2008 (15) SCC 610.
(iii) Liliben Wd/o Gabubhai Narsinhbhai through Power of
Attorney Vs. Ramilaben W/o of Mohanbhai Govindbhai
Patel reported in 2012(2) GLH 308.
(iv) Dhirubhai Kanjibhai Vs. Babiben Wd of Ramanbhai
Narisbhai reported in 2024 (0) GUJHC 44933.
6.4 Making the above submissions, learned advocate Mr.
Sharma would request this Court to allow the present writ
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application.
Submission of the respondents No.1.1 to 2- original plaintiffs
7. Learned advocate Mr. Kheskani would respectfully
submit that there is no error much less any gross error of law
committed by the trial Court while allowing the impugned
amendment application, thereby, this Court should not
interfere with such reasoned order passed by the trial Court,
while exercising its power under Article 227 of the
Constitution of India.
7.1 Learned advocate Mr. Kheskani would respectfully
submit that whether amendment sought for is time barred
or not, is a question of fact and law to be decided during the
course of trial and as such, the issue requires to be left open
to be decided during the course of trial. It is submitted that
as per settle legal position of law, mere delay in filing an
amendment application would not be a ground to disallow
any amendment sought for by the party.
7.2 Learned advocate Mr. Kheskani would further submit
that undisputedly the suit in question came to be filed on
13.10.1993, whereas, registration of sale-deed came to be
undertaken by the defendants No. 1 to 8 in favour of
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defendant No.9 on 29.10.1993. It is submitted that in the
application filed below Exh. 28 by the plaintiffs, nowhere it
has been mentioned by the plaintiffs that they were aware
about the registration of sale-deed by the defendants No. 1
to 8 in favour of defendant No.9 in relation to the suit land.
7.3 Learned advocate Mr. Kheskani would further submit
that, as per the settled legal position, once a suit for specific
performance is decreed, any subsequent sale deed executed
by the original owner in favour of a third party is required to
be quashed and set aside. It is respectfully submitted that no
harm or prejudice would cause to defendant No.9, if the
amendment sought for granted, inasmuch as, defendant
No.9 would still have the right to lead evidence on merit.
7.4 Learned advocate Mr. Kheskani would further submit
that when fact came on record that there is a registration of
sale deed by defendants No. 1 to 8 in favour of defendant
No.9, the issue germane in the suit requires to be effectively
answered by the trial Court and to resolve controversy
between the parties, the amendment sought for requires to
be granted and in fact correctly granted by the trial Court.
7.5 To buttress his argument, learned advocate Mr.
Kheskani would refer and rely upon the decision in the case
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of Pankaja and another Vs. Yellappa (Dead) By Lrs. And
others reported in (2004) 6 SCC 415.
8. Learned advocate Mr. Ronith Joy for some of the
respondents would support the case of the petitioner,
inasmuch as, he would submit that there is glaring defect in
the order passed by the trial Court, unnoticing the fact that
amendment sought for is hopelessly time barred, thereby, it
could not have been granted by the trial Court.
Point for determination
9. The short question falls for my consideration as to
whether- in the facts and circumstances of the case, the
amendment sought for by the plaintiff by way of an impugned
application filed below Exh. 197 was correctly granted by the
trial Court or not?
Analysis
10. The facts which are narrated hereinabove are not in
dispute. It is remain undisputed fact that the suit came to be
filed in the year 1993 seeking specific performance of an
agreement to sell executed by the defendants No. 1 to 8 in
favour of defendant no.9 on 12.10.1990. So, the proviso to
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Order 6 rule 17 of CPC would not be applicable, inasmuch as,
the suit filed prior to insertion of proviso into Order 6 rule
17 of CPC. So, in light of the un-amended position of Order 6
rule 17 of CPC, all amendments filed at any stage of
proceedings can be allowed.
11. At the same time, it is also required to be noted that
whenever any amendment sought for by the party, certain
well settle position of law since inception requires to be
considered by the trial Court, when adjudicated impugned
amendment application. One of such requirement of law
would be that by way of amendment, any time barred claim
should not be introduced by the party. If the Court finds that
there is a time barred claim introduced during the pendency
of the suit, such amendment cannot be granted.
12. Put it in a different form, if any independent suit
challenging any document which is sought to be introduced
by way of amendment for its challenge in the pending suit
would be maintainable, then there is no harm in allowing
such amendment. But, if such institution of suit challenging
any document is ex-facie and hopelessly time barred,
amendment sought to be introduced in the pending suit
challenging the very document by way of such amendment,
cannot be granted.
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13. The law on this subject is more or less well settled and
clarified by the Hon'ble Apex Court in its number of
decisions, some of which are referred herein below.
14. 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, wherein it held thus :-
"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
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.
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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)
15. Likewise, the Hon'ble Apex Court in the case of Life
Insurance Corporation of India Vs. Sanjeev Builders Pvt.
Ltd. reported in (2022) 16 SCC 1, which in fact relied upon by
learned advocate for the petitioner has also succinctly
summarized the principles on which an amendment
application can be granted or not to be granted. The Hon'ble
Apex Court summed up its conclusion as under :-
"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.
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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 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,
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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)
16. If the ratio of the aforesaid decisions applied to the
facts of the present case, it remain undisputed on record
that defendant No.9 was joined at the instance of the
original plaintiffs having so filed an application below Exh. 28
on 30.12.1994 wherein, it was alleged by the plaintiffs
themselves that defendants No. 1 to 8 sold the suit land to
defendant No.9, who is trying dispossess the plaintiffs. It is
true that in such application filed below Exh. 28, there is no
express mentioned about registration of sale-deed dated
29.10.1993.
17. At the same time, plaintiffs cannot play ignorance
about such registration of sale-deed, inasmuch as, a separate
suit came to be filed against him by defendant No.9 i.e.
Regular Civil Suit No. 268 of 1994 (Annexure-B), wherein in
Para-1 of the suit, it has been specifically pointed out about
such sale-deed executed by the defendants No. 1 to 8 in
favour of defendant No.9. It is reported to this Court that
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such suit is also decreed in favour of defendant No.9. Even in
light of said peculiar facts and circumstance of the case,
wherein plaintiffs having gathered knowledge about sale of
suit property in favour of defendant No.9, as per Section-3 of
Transfer of Property Act, 1882, once there is registration of
sale deed, party presumed to have its deem knowledge.
18. In light of the aforesaid factual aspect so germane from
the record, it can be easily seen that it was well within the
knowledge about the plaintiffs about registration of a sale -
deed executed by the defendants No. 1 to 8 in favour of
defendant No.9 in the year 1994 or at best in year 1995
itself. If it be so, as per Article 58, 59 or 113 of the Limitation
Act, 1963, within three years from the right to sue first
accrue, plaintiffs could have challenged such sale-deed
executed in favour of defendant No.9, before end of
1997/19998. The plaintiffs failed to act in time.
19. If all these facts to be taken into account, it leads to
only conclusion that claim introduced by way amendment
which sought for by the plaintiffs through the impugned
application filed below Exh. 197 is hopelessly time barred,
inasmuch as, impugned application came to be filed only on
14.02.2000, whereby, plaintiffs want to question / challenge
the sale-deed of defendant No.9 registered on 29.10.1993,
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albeit it came to their knowledge either on 30.12.1994 when
filed joining party application or on receipt of Regular Civil
Suit No. 268 of 1994 filed by petitioner against them as the
case may be.
20. The issue germane in the application is otherwise no
longer remain res-integra as already decided by 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, 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 :-
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Description of Suit Period of Time from which period
Limitation begins to run
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.
(emphasis supplied)
21. So far as the decision so cited by the learned advocate
Mr. Kheskani for the respondents is concerned, there is no
cavil that mere delay in filing an amendment application
would not be a ground to disallow such amendment. At the
same time, the Court cannot oblivious of the fact that if on
the face of it, amendment sought for is time barred, as per
the aforesaid decisions and ratio laid down therein, such
amendment cannot be allowed.
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22. When the amendment sought for is time barred and
cannot be allowed and having so allowed, the trial Court has
committed not only gross error of law but also committed
jurisdictional error which requires to be corrected by this
Court while exercising its supervisory jurisdiction under
Article 227 of the Constitution of India. [See : Waryam Singh
v/s Amarnath - AIR 1954 SC 215].
23. So far as another limb of argument of learned advocate
Mr. Kheskani for the respondents that if ultimately suit
decreed in favour of plaintiffs, as per settle legal position of
law, execution of any deed between the defendants would
no longer survive. Such aspect need not be gone into by this
Court at this stage while adjudicating the amendment
application, such aspect requires to be decided by the trial
Court while finally deciding the suit if decree in favour of the
plaintiffs.
24. Thus, impugned order cannot allow to stand in law and
matter requires to be allowed. At this stage, it is jointly
requested by the learned advocates for the parties that
considering the fact that the suit is of the year 1993, the
same may be heard and decided as expeditiously as possible.
25. In fact, the matter listed on top of the board because of
the fact that the suit is of the year 1993, i.e. More than 30
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years old suit. So, in view of above, trial Court is hereby
directed to hear and decide the suit as early as possible
preferably on or before 30th June, 2026, subject to co-
operation extended by parties to the suit.
Conclusion
26. In light of the aforesaid observations, discussions and
reasons, the present writ application requires to be allowed,
which is hereby allowed. Consequently, the impugned order
dated 08.11.2023 passed by the Additional Senior Civil
Judge, Kalol in Application below Exhibit 197 in Regular Civil
Suit No. 284 of 1993 is hereby quashed and set aside.
Accordingly, the amendment application filed below Exh.
197 in the aforesaid suit is hereby rejected. Rule is made
absolute to the aforesaid extent. No cost.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
