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Judgment
Both the above petitions could be taken up for hearing and simultaneous consideration in this common order in view of the fact that the both arise from common judgment and order dated 15th September, 2014 passed by the Gujarat State Co-operative Tribunal. The said judgment which involved similar facts and issues decided the Revision Application Nos.45 of 2014 as well as No.49 of 2014. Special Civil Application No.15177 of 2014 is correspondent to Revision Application No.49 of 2014, whereas the other petition relates to Revision Application No.45 of 2014.
By the impugned judgment and order, the
Tribunal set aside order dated 18th February, 2014 passed by the Board of Nominees, Vadodara passed in Lavad Suit No.1227 of 2004 whereby Board of Nominees allowed application Exhibit 85 permitting the amendment in the Lavad Suit. The Tribunal did not approve the order and rejected the application for amendment by setting aside the Board of Nominee?s order.
Petitioner is a co-operative society registered under the Gujarat Co-operative Societies Act, 1961 which is a housing society and whose byelaws do not permit a member to use the plot allotted in the society for commercial purpose. Respondent No.1 who had constructed residential house in his plot No.4, applied on 12th July, 2004 before the society for permission to construct a commercial centre. The application was rejected by the society in its Executive Meeting held on 04th August, 2004 on the ground of bye-laws not permitting such use of the plot. It appears that notwithstanding the rejection by the society, the respondent No.1 started making construction of commercial nature. Notice dated 26th August, 2004 issued by the society asking the respondent to stop, did not budge him.
3.1 Lavad Suit No.1227 of 2004 before the Board of Nominees for permanent injunction to stop the commercial construction in question was filed, wherein the injunction application was moved but came to be rejected. Society filed Revision Application No.435 of 2004 before the Tribunal which was rejected on 05th
February, 2005. The petitioner society filed Special Civil Application No.12689 of 2005 which ultimately came to be decided on 26th October, 2010, this Court directed the Board of Nominees to hear and dispose of the Lavad Suit within a period of six months and further directed to maintain status quo till decision in Lavad Suit. It is the case of the petitioner that despite the time-bound direction, the Lavad Suit is still pending for one or other reasons and is not disposed of.
3.3 The said application Exh.48 came to be partly allowed by the Board of Nominees as per order dated 14th July, 2010, permitting to join the third parties as opponent Nos.9 to 16. However, the amendment in the plaint was not allowed. For not allowing the amendment in the plaint, the Board of Nominees reasoned that it would be proper to pass appropriate order on the amendment pleaded after the
newly added parties are joined and who are heard on the amendment. Backed by such reasoning elaborated in the body of the order, in the operative portion, the Board of Nominees rejected the part of the prayer to amend the plaint at that stage. It is relevant to mention that the respondent herein challenged the said order dated 14th July, 2010 of the Board of Nominees below Exhibit 48 before the Tribunal. The Revision Application was dismissed.
3.4 While the amendment granted to the extent carried out in the plaint, the petitioner-plaintiff filed application Exhibit 85 in February, 2013 whereby that part of the amendment was prayed for in plaint which was not granted by the Board of Nominees earlier. The Board of Nominees granted the said amendment by order dated 18th February, 2014 allowing the amendment, which however came to be upturned by the Tribunal as per the impugned order.
Heard learned advocate Mr.Navin Pahwa for Thakkar and Pahwa Advocates for the petitioners, learned advocate Mr.Baiju Joshi for the first respondent, and learned advocate Mr.Salil M. Thakore for the third and fourth respondent. The rest of the respondents, though served, did not appear.
4.1 Learned advocate for the petitioner submitted that the amendment prayed for may be liberally viewed and granted in asmuch as earlier it was prayed and the Board of Nominees kept it in a way in abeyance by not granting at that stage. He
submitted that the amendment was necessary for addressing controversy fully. He relied on decision in Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] to submit that the powers under Order VI Rule 17 of the Code of Civil Procedure should be exercised in such a manner and on such terms to do ultimate justice. He relied on another decision also of the Supreme Court in Revajeetu Builders & Developers v. Narayanswamy & Sons [(2009) 10 SCC 84] to pinpoint the principles relating to grant of amendment. A decision of this Court in Schencr Process India Limited v. Videocon Industries Limited [2012 (2) GLH 447] relied on to submit that the amendment can be granted at any stage of the proceedings. Another decision of the Delhi High Court in case of Rajesh Kumar Aggarawal v. K.K. Modi [AIR 1998 Delhi 1297] was pressed into service.
4.2 On the other hand, learned advocate for respondent Nos.3 and 4 relied on contentions raised in the affidavit-in-reply and submitted that the amendment was belated after nine years from the date of institution of suit. He further submitted that the amendment was once considered and not granted at a particular stage by the Board of Nominees, thereafter rightly granted also. It was submitted that it was after considerable time that the amendment was proposed to be made by the petitioner-plaintiff. He further submitted that the plaintiff was throughout aware about the development about construction in the plot and selling away thereof which they now seek to incorporate as amendment. It was further submitted that knowledge of the plaintiff about the developments
was attributable in the year 2005 itself and that the Municipal Corporation had granted permission in the year 2005.
4.3 It was next submitted that the proposed amendment was not liable to be granted in view of law of limitation. It was submitted that a valuable right has accrued for the defendants under the law of limitation and if the amendment is granted, they would be deprived of the same. In support of the proposition, learned advocate for respondent Nos.3 and 4 relied on decision of the Supreme Court in case of Radhika Devi v. Bajrangi Singh [AIR 1996 SC 2358]. Another decision of this Court in Saiyed Rashedakhatun d/o Tasadukhusain thro POA Samina v. Vishnubhai Ambalal Patel deceased through heirs being Special Civil Application No.1871 of 2013 decided on 28th August, 2014, in particular paragraphs 41, 49 and 53 thereof.
Having considered the facts, events and the rival submissions on the issue, proceeding to look into the controversy suit vis-a-vis the nature of amendment sought to be made in the plaint, it would not be gainsaid that the amendment introduced a new case or what was sought to be incorporated was foreign to the original controversy. The lavad suit was filed by the petitioner society seeking permanent injunction against the defendant-respondent No.1 to restrain him from making commercial construction on the plot and stating a ground that it was contrary to the bye-laws. The amendment which was prayed for in Exhibit 48
application was in the context that during the pendency of the suit, the defendant had undertaken the construction work on the plot and thereafter the plots were sold away. 5.1 The plaintiff wanted to insert the pleadings that the said act was in breach of the bye-laws of the society. The averments for declaration that such acts on part of the defendants were illegal, were sought to be incorporated. It was further pleaded that the said amendment was before commencement of recording of evidence in the trial and further that the amendment was necessitated for the reason of subsequent developments during the pendency of the suit. Having regard to the nature of the suit as originally instituted, the amendment prayed for and the pleadings and prayers sought to be incorporated could hardly be said to be changing the nature of the controversy. The pleadings and the prayers in the proposed amendment were based on the related facts being the subsequent developments after institution of the suit.
5.2 As noted above, the amendment was initially prayed in the year 2009 by filing Exhibit 48 application. At that time, the Board of Nominee allowed part of the amendment by permitting to join the third party purchasers but the other part of the amendment was not granted at that stage. It is trite principle that amendment which does not change the nature of the suit can be granted at any stage of proceedings. The ultimate object for granting the amendment is that the court is enabled to consider the
controversy in wholesome way and the multiplicity of proceedings is avoided. It could not be overlooked that the very amendment which is prayed for below Exhibit 85 was already prayed for and the Board of Nominees had granted it in part by allowing third party purchasers to be on record as duly impleaded whereas did not grant the other part at that stage only on the ground that the newly joined parties may be heard on the aspect. The said other part of the amendment was inextricably connected with the impleadibility of third parties.
5.3 The projected ground of delay raised by the respondents has to be viewed in the aforesaid context. Furthermore, the rejoinder submission of the petitioner could not be brushed aside lightly that in the interregnum there were proceedings including Special Civil Application No.12689 of 2005 which was decided on 26th October, 2010. The amendment which was not granted at particular stage reserving liberty, was subsequently prayed for. In any view, delay by itself should not be a ground to deny the amendment as it is permissible to grant the amendment at any stage of the proceeding. When the other parameters stand satisfied for accepting the plea of amendment, it should be dealt with liberally having regard to the object of the amendment. It is well-settled that provision for amendment is incorporated in the Code of Civil Procedure to minimize the multiplicity and avoid protraction of the litigation on the same issues.
5.4 If the amendment helps to settle the entire
controversy at one go, it must be allowed liberally irrespective of the stage of the proceeding. The amendment which is in the nature of addition of facts relating to the controversy originally raised in the suit, would help the court to adjudicate the rights of the parties finally and with lasting effect. The amendment when allowed only incorporates pleadings or prayers and as such not the rights of the parties finally. The final determination of rights would be in course of trial where all the contentions of the parties would be available.
5.5 Where a question of limitation is raised qua the amendment and it is contended against grant of amendment that granting of amendment would take away the plea in respect of limitation, amendment could be allowed keeping such plea of the other side open to be considered in course of the trial. The grant of amendment by itself may not take away the right to raise the plea of limitation, if on facts, such plea could be raised and established. Only in cases where the amendment is such which tantamount to take away crystalised right on the basis of limitation, to say that the other side is clearly prejudiced by grant of amendment itself, it may be refused, such could not be said to be the case here.
5.6 In L.C. Hanumanthappa (since dead) v. S.D. Shivakumar [(2016) 1 SCC 332] the Supreme Court considered the question of grant of amendment where further relief was added by way of an amendment and the same was tested on the plea that it was barred by
limitation on the date of grant of amendment. The Court summarised the governing principles on the applicability of doctrine of relation back, that is, relating back the amendment to the date when the suit was originally filed. In that case, the suit was for permanent injunction. After dismissal of the suit, in appeal, the High Court had remanded the matter to the trial court after allowing the amendment in the plaint regarding addition of further relief so as to declaration of title to the suit property. The said amendment was granted subject to plea of limitation that could be raised by the defendant in its additional written statement.
In the totality of the facts of the present case, the contention of the respondents-defendants that, on the ground of applicability of limitation, the amendment and the prayers were not grantable, could not be allowed to hold good in asmuch as by granting amendment, the prayers themselves are not granted. The amendment deserves to be granted because it is based on the subsequent factual developments and has direct nexus with the original dispute in the suit. When amendment prayed for does not chart in any way a different course than the area of dispute between the parties in the suit, it has to be allowed. All rights and contentions of both the parties including with regard to the law of limitation for grant of relief prayed for in the amendment are kept open.
6.1 In the aforesaid view, amendment ought to
have been allowed by the Tribunal which was allowed by the Board of Nominees. Accordingly, amendment is hereby granted by setting aside the impugned order of the Tribunal. However, at the same time, it is clarified that contention of the other side about the plea of limitation qua the amendment is not closed and both the sides will have their respective contentions open on that score. While trying the suit, Board of Nominees would be bound to consider the plea of limitation as to whether the prayers as amended are grantable or not on the said ground. This Court while granting the amendment herein does not express anything on the said aspect.
For the discussion and reasons foregoing, both the petitions deserves to be allowed. The common judgment and order dated 15th September, 2014 passed by Gujarat State Co-operative Tribunal in Revision Application No.49 of 2014 and Revision Application No.45 of 2014 is set aside. As a result, order dated 18th February, 2014 below Exhibit 85 in Lavad Suit No.1227 of 2004 is restored and the amendment prayed for in application Exhibit 85 stands granted, with above clarification and qualification. The petitions are allowed and disposed of accordingly.