Girdharbhai Gandubhai Tarpara Through Power of Attorney and Others vs Gandalal Meghabhai and Another

M.D. Shah, J.—This petition under Articles 226 and 227 of the Constitution of India challenges order dated 1-9-2009 passed below Application Ex.30 in Regular Civil Suit No. 108 of 2007 by the learned Principal Civil Judge, Kalavad, whereby the application for amendment of the plaint was rejected.

Facts in short are that the present Petitioners-original Plaintiffs filed a suit in the Court of learned Principal Civil Judge, Kalavad, on 15-11-2007 for a declaration that the Plaintiffs are owners and they are in possession of the agricultural land and for a permanent injunction restraining the Defendants from initiating any action for taking possession. The Plaintiffs also preferred an application for ad-interim injunction, which was not pressed. Thereafter, on 23-6 2009, the Plaintiffs preferred an application at Ex.30 under Order 6 Rule 17 seeking amendment of the plaint. Upon hearing the learned advocates appearing for the respective parties, the learned Principal Civil Judge, Kalavad, vide order dated 1-9-2009 dismissed the said application. Hence, the present petition by the original Plaintiffs.

Heard learned advocate, Mr. R.C. Kakkad for the Petitioners and Mr. V.N. Mepara for the Respondents.

It is submitted by Mr. Kakkad that the present Petitioners-original Plaintiffs have filed the suit for a declaration and permanent injunction in para 3 of which it was specifically mentioned that the Defendants, without informing the Plaintiffs, fraudulently through their father executed registered sale deed and legal notice dated 18-4-2007 was also given to the Defendants. It is further submitted that though there were specific averments made in the plaint, through mistake or by any reason, specific relief regarding those averments was not asked by the Plaintiffs. Therefore, when there are specific averments regarding fraudulent transaction in the plaint itself, claiming the relief by seeking amendment would not change the total nature of the suit nor can be said that any new cause of action has arisen and hence, amendment application ought to have been allowed. He, therefore, prayed to quash and set aside the impugned order.

Learned advocate, Mr. Mepara, submitted that the trial court has rightly held that amendment was sought after a long lapse of time of filing the suit, placing the injunction application, framing the issues and seeking several adjournments and, hence, cannot be entertained.

This Court has gone through para 3 of the plaint as well as the averments made in the application for amendment at Ex.30. No doubt, considerably long delay has occurred in filing the amendment application. However, in the opinion of this Court, by allowing this amendment, nature of the suit is not going to be changed nor can it be said that any new cause of action has arisen. Reliance is placed on the case of Surender Kumar Sharma Vs. Makhan Singh, wherein it has been held in para 5 as under:

It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs.

In view of the above ratio laid down by the Hon''ble Apex Court in the afore referred reported decision, though there is considerably long delay in preferring the amendment application, if nature and character of the suit is not going to change, then amendment application can be allowed by directing the applicant to pay cost to the opposite party. Thus, the trial court has committed error in rejecting the application Ex.30. Hence, in the opinion of this Court, the application for amendment is required to be allowed by quashing and setting aside the order passed by the court below.

This petition is accordingly allowed. Order dated 1-9-2009 passed below Application Ex.30 in Regular Civil Suit No. 108 of 2007 by the learned Principal Civil Judge, Kalavad, is hereby quashed and set aside and the Application Ex.30 is hereby allowed on the Petitioners paying an amount of Rs. 5,000/- (Rupees Five Thousand only) towards costs of the Respondents.