Gujarat High Court
Pathan Aiyubkhan Ishhakhan vs Patel Parsottambhai Joitaram on 24 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4342 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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PATHAN AIYUBKHAN ISHHAKHAN & ORS.
Versus
PATEL PARSOTTAMBHAI JOITARAM & ORS.
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1,2,3,4,5
MR IM PANDYA(546) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/09/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Tejas P. Satta for the petitioners
and learned Advocate Mr. I. M. Pandya for the respondents.
The respondent No.1 died but his legal heirs are already
brought on record of this writ application.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
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"(A) The Hon'ble Court be pleased to issue appropriate writ, direction or
order in nature of mandamus to quash and set aside the impugned order
dated 10.01.2014 passed below Exh.14 under Order 6 Rule 17 of the
Code of Civil Procedure, 1908 in Regular Civil Suit No.79/2013 by the
petitioners.
B) The Hon'ble Court be pleased to stay the implementation of the order
dated 10.01.2014 passed below Exh.14 application in Regular Civil Suit
No.79/2013.
(C) The Hon'ble Court be pleased to pass such other orders as may be
deemed just and proper in the circumstances of the case."
3. As far as possible, the parties will be referred to as per their
original position before the Trial Court.
4. THE SHORT FACTS OF THE CASE:
4.1. The petitioners herein are original plaintiffs, whereas,
respondents are original defendants of Regular Civil Suit
No.79/2013, pending before the Senior Civil Judge, Mehsana.
The suit came to be filed seeking the easementary right of the
plaintiffs, which was obstructed by the defendants.
4.2. It appears that pending the suit, an amendment application
under Order 6, Rule 17 of the Code of Civil Procedure, 1908,
came to be filed by the plaintiffs below Exh.14 in the suit,
whereby, they sought an amendment to the effect that during
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the pendency of the suit, defendants have constructed
permanent wall and one room on the subject matter of the suit
land, whereby, it affects the right of way of the plaintiffs, which
requires to be removed by granting mandatory injunction.
There are other miscellaneous amendments as regards few
deletion of the word in the plaint, also sought for in the
amendment application. Such application was opposed by the
defendants.
4.3. After hearing the parties, the Trial Court vide its order dated
10th January 2014, rejected the impugned amendment
application. Hence, the present application.
5. SUBMISSION OF THE PETITIONERS-PLAINTIFFS:
5.1. Learned Advocate Mr. Satta would submit that the Trial Court
has committed gross error of law by not allowing the impugned
amendment application as prayed for. It is submitted that the
amendment application was filed prior to the commencement
of trial, inasmuch as it was filed before even deciding the
injunction application.
5.2. Learned Advocate Mr. Satta would submit that as per the
settled legal position of law which he placed reliance upon, all
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amendments filed prior to the commencement of trial needs to
be granted by the Trial Court unless it changes the nature of
the suit, barred by law or found to be vexatious. It is
respectfully submitted that the amendment sought for by the
plaintiffs would neither change the nature of the suit nor
barred by any law, requires to be granted.
5.3. Learned Advocate Mr. Satta would further submit that the
Trial Court, while adjudicating the impugned application, not
elaborated as to how the amendment would change the nature
of the suit. It is submitted that the suit filed claiming
easementary right of the plaintiffs, whereas, during the
pendency of the suit, defendants tried to create further hurdles
by putting permanent obstruction in the way of the plaintiffs,
thereby, need arise to file amendment application, which
should have been granted, in the interest of justice.
5.4. Learned Advocate Mr. Satta would submit that when the
impugned order is erroneous, perverse and contrary to the
settled principles of law and so also not in proper exercise of its
jurisdiction, this Court should interfere with the impugned
order while exercising its power under Article 227 of the
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Constitution of India.
5.5. To buttress his arguments, learned Advocate Mr. Satta would
rely upon the following two decisions:
(i) Life Insurance Corporation Of India Versus Sanjeev Builders
Private Limited & Anr reported in (2022) 16 SCC 1;
(ii) Sampath Kumar V/s. Ayyakannu and another reported in
(2002) 7 Supreme Court Cases 559.
5.6. Making the above submissions, learned Advocate Mr. Satta
would request this Court to allow the present writ application.
6. SUBMISSION OF THE RESPONDENTS-DEFENDANTS:
6.1. Per Contra, learned Advocate Mr. Pandya would submit that
there is no error much less any gross error committed by the
Trial Court while rejecting the impugned application. It is
submitted that this Court while exercising its jurisdiction under
Article 227 of the Constitution of India, should not interfere
with the order passed by the Trial Court, inasmuch as there is
neither any illegality nor irregularity committed and so also,
there was no jurisdictional error committed by the Trial Court
while passing the impugned order.
6.2. Learned Advocate Mr. Pandya would further submit that the
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entire suit of the plaintiffs is hit by Section-41 of the Easements
Right Act, 1882 (hereinafter referred to as "Act, 1882"). It is
submitted that when the relief sought in the plaint itself is not
to be granted and made available to the plaintiffs, the question
of granting such amendment would not arise. So, according to
his submission, there is no error committed by the Trial Court
while rejecting the impugned application.
6.3. Learned Advocate Mr. Pandya would further submit that the
Trial Court has correctly observed that by granting an
amendment as sought for, would change the nature of the suit,
inasmuch as the suit filed seeking easementary right/claim of
the plaintiffs, whereas by way of amendment, the plaintiffs
want to seek a mandatory injunction, inasmuch as asking for
relief of removing permanent constructions as alleged in the
application. It is submitted that this prayer would definitely
changes the nature of the suit from seeking easementary right
to mandatory relief.
6.4. Making the above submissions, learned Advocate Mr. Pandya
would request this Court not to entertain the present writ
application.
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7. No further and no other and further submissions are made by
any of the learned Advocates appearing for the respective
parties.
8. Heard learned Advocates appearing for the respective parties at
length.
9. The facts which are observed hereinabove are not in dispute.
The suit in question is filed seeking easementary right of the
plaintiffs, which is alleged to have been obstructed by the
defendants. It also remained undisputed that the injunction
application was not decided at the time of filing the impugned
amendment application. What is claimed in the amendment
application that during the pendency of the suit, defendants
have put up permanent construction in the form of a wall and a
room, thereby, permanently obstructed the way of the
plaintiffs. So, need arose to file amendment in the plaint,
thereby, plaintiffs can claim mandatory relief in the plaint
itself.
10. The reasons assigned by the Trial Court while rejecting the
impugned application is thoroughly misconceived on facts as
well as at law, requires to be interfered with by this Court for
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following reasons, even though this Court has limited
jurisdiction under Article 227 of the Constitution of India.
11. The Trial Court has rejected the impugned amendment
application mainly on the ground that if the amendment is
granted would change the nature of the suit. As such, there are
no satisfactory reasons assigned by the Trial Court to arrive at
such conclusion. Having so observed, the facts remained that
the suit is filed seeking easementary right of the plaintiffs,
which of course, will be adjudicated by the Trial Court during
the course of the trial. If something happens during the
pendency of the suit by alleged act of the defendants, which
ultimately going to affect the final outcome of the suit, thereby,
the plaintiffs want any further relief which they thought it,
would requires to get complete justice, for which amendment
sought for, according to my view, such amendment should be
granted by the Court.
12. According to this Court, by granting the amendment as sought
for in the impugned application by way of the impugned
application, it will neither change the nature of the suit nor
would the amendment hit by any provision of law, including
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Section 41 of the Act 1882. The entitlement of any claim made
by the plaintiffs in the suit would be decided by the Trial Court
as per the evidence coming forth on the record of the suit. But
at this stage while adjudicating the amendment application,
such aspect need not required to be gone into because the issue
germane and raised by the learned Advocate Mr. Pandya,
requires to be proved by leading appropriate evidence being
question of fact and law, undoubtedly not a pure question of
law.
13. Furthermore, subsequent development taken place during
pendency of suit, plaintiff well within his right to bring such
fact on record of the suit by way of an amendment. To avoid
any multiplicity of proceeding between the parties, such type of
amendment especially pre-trial amendment requires to be
granted except specifically barred by any law or would
completely change the nature of suit. Such would not be the
case on hand.
14. At this stage, it would also be apt to refer decision of the
Honourable Apex Court in the case of Sampath Kumar (supra),
wherein it held thus:
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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."
(emphasis supplied)
15. Likewise, in the case of Sanjeev Builders (supra), after
analyzing the scope and ambit of Order 6 Rule 17 of CPC, the
Honourable Apex Court held thus:
"71. Our final conclusions may be summed up
thus:
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71.1. Order 2 Rule 2CPC 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 2 Rule 2CPC 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 6
Rule 17CPC.
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.
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 do 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:
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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 mala fide,
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, 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.
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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 [Vijay Gupta v. Gagninder
Kr. Gandhi,2022 SCCOnLineDel 1897] .)"
(emphasis supplied)
16. Thus, in view of the aforesaid peculiar facts and circumstances
of the present case, this Court is of the view that the impugned
order passed by the Trial Court is not sustainable in law,
inasmuch as it is contrary to the settled legal position of law. It
is now well settled that pre-trial amendment should be liberally
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granted unless falls in any of exception so carved out in
aforesaid decision.
17. It is now well-settled legal position of law that whenever there
is any order passed by the Trial Court is either erroneous,
perverse, arbitrary, or contrary to law, this Court can always
exercise its supervisory jurisdiction under Article 227 of the
Constitution of India. [See - Waryam Singhvs vs. Amarnath,,
reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias
Bhudeb Mallick and Another vs. Ghoshal and Others, reported in
2025 SCC OnLine SC 360 (para 53 to 58)].
18. In view of the foregoing discussion and reasons, the impugned
order dated 10th January 2014 passed by the Principal Senior
Civil Judge, Mehsana, below Exhibit 14 in Regular Civil Suit
No. 79/2013, is hereby quashed and set aside. Accordingly, the
impugned amendment application filed below Exhibit 14 in the
aforesaid suit is hereby allowed.
19. The plaintiffs are hereby directed to submit an amended copy
of the plaint/injunction application, if any, within 3 weeks from
the date of receipt of the copy of this order. It goes without
saying that on receiving such amended copy, the defendants
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also entitled to file an additional written statement against such
amended plaint.
20. The trial Court shall decide the lis between the parties in
accordance with law, without being influenced by any of
aforesaid observations made by this Court herein above and or
made by trial Court itself while passing impugned order, which
it otherwise quashed.
21. In view of the aforesaid conclusions, the present writ
application is hereby allowed to the aforesaid extent. Rule
made absolute accordingly. Interim relief stands vacated
forthwith. No order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
