Shanabhai Mangalbhai Patel and Others vs Bhagavanbhai Revabhai Patel and Another

Rule. Mr. A. J. Patel waives service of rule on behalf of respondents. In the facts of the case at the request of and with the consent of the

parties, the matter is ordered to be heard today.

The petitioners-plaintiffs filed suit praying for declaration that the property in dispute, namely agricultural land admeasuring 1 acre and 10

goonthas and a residential house, belong to the plaintiffs and for injunction that respondents-defendants be restrained from interfering with the

possession of the plaintiffs. The respondents-defendants appeared in the suit and resisted the claim of the plaintiffs on facts as well as on law

points, Before commencement of recording of oral evidence, the plaintiffs filed application being Ex. 40 for amendment in the plaint. The plaintiffs

alleged that the suit was with respect to ancestral property and by mistake the plaintiffs omitted to write that the father of the plaintiffs had 1/2 share

in the property. For the reasons stated in the application for amendment, the petitioners prayed that the petitioners be permitted to pray for

declaration as regards the nature of the property and partition of the same.

The trial Court rejected the application as per its order dated September 2, 1988 mainly on the ground that the application for amendment was

submitted at a late stage and also on the ground that it lacked in bona fides. It is against this order that the revision application is filed by the

petitioners-plaintiffs. As far as the lack of bona fide is concerned, there is nothing to show that the application has been filed by the plaintiffs with an

ulterior purpose or with mala fides. The petitioners have categorically stated that it was by mistake that the plaintiffs did not mention about the

nature of the property i.e. whether it was the ancestral property or self acquired property. If an error is committed by the litigant himself or by the

advocate of the litigant in drafting the pleadings, the error can be rectified at any stage of the suit. Simply because there is delay, party cannot be

denied a just relief on the ground that it is not in conformity with the rules of procedure. Rules of procedure are enacted with a view to do justice

between the parties. The object of the procedure is to see that the disputes between the parties are adjudicated in just, fair and reasonable manner.

The procedural law is not a penal enactment with view to impose penalty or inflict punishment on the parties on account of their mistakes or on

account of the mistakes of their advocates.

As far as the pleading in amendment is concerned the provisions of O.6, R. 17 of CPC would apply. The Court is required to see whether the

amendment is necessary for arriving at just and fair decision for resolving the disputes between the parties. It is not even the finding, of the trial

Court that the amendment was not necessary. Once the amendment is necessary for resolving the dispute between the parties, ordinarily the

amendment should not be refused. Amendment may be refused if, by lapse of time, the remedy is barred. It may also be refused in cases where the

Court comes to the conclusion that the party is resorting to the device of amendment of pleading as abuse of process of law and not for the

purpose of putting its case in proper perspective. Such is not the case in this matter.

True, the other side would be put to some inconvenience and hardship on account of the amendment being granted. Therefore, the other side is

required to be compensated when the amendment in the plaint is being allowed.

In the result, the revision application is allowed. The order passed by the trial Court below application Ex. 40 in Regular Civil Suit No. 45 of

1983 of the Court of Civil Judge (J.D.), Kalol (Dist. Panchmahal) is quashed and set aside. Amendment as prayed for in application Ext. 40 is

allowed on the condition that the plaintiffs shall pay an amount of Rs.250/- as and by way of cost to the respondents-defendants. The payment of

cost to the defendants shall be a condition precedent and the plaintiffs shall deposit the amount of cost in the trial Court within a period of one

month from today or before any other date that may be specified by the trial Court, but it shall not be later than one month from, the date of receipt

of the writ of this Court by the trial Court. The plaintiffs shall be permitted to carry out the amendment in the plaint only after the deposit of the

amount of cost to be paid to the other side is made. As and when the amount is deposited in the trial Court by the plaintiff, the defendants will be at

liberty to withdraw the same. After the plaintiffs carry out the amendment in the plaint, the other side will be at liberty to file additional written

statement and thereafter the suit shall proceed further in accordance with law. Rule made absolute accordingly.

Application allowed.