Gujarat High Court
Chiragbhai Arvindbhai Desai vs Heirs Of Pushpaben D/O. Ambalal ... on 7 March, 2025
NEUTRAL CITATION
C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26326 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 26326 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 26326 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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CHIRAGBHAI ARVINDBHAI DESAI
Versus
HEIRS OF PUSHPABEN D/O. AMBALAL JAVERBHAI AND WD/O
MANUBHAI PARSHOTTAMBHAI & ORS.
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Appearance:
MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No.
1,1.2,1.3,1.3.1,1.3.2,2,2.1,2.2,4.2
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 3,4,4.1
NOTICE SERVED for the Respondent(s) No. 1.1,2.1.1,2.1.3,2.2.1,2.2.3,2.3
NOTICE SERVED BY DS for the Respondent(s) No. 2.1.2,2.2.2,2.4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/03/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Rashesh Parikh for the petitioner and learned advocate Mr. Mrugen K. Purohit for the respondents Nos. 3 & 4 - original defendant Nos. 3 & 4.
Page 1 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined Though served, none appeared for rest of respondents.
2. The present application is filed under Article 227 of the Constitution of India seeking following reliefs :-
"A. Your Lordships may be pleased to admit and allow this petition.
B. Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned judgment dated 09.11.2022 passed below Exh. 103 in Civil Suit No. 24 of 1992 passed by 6th Additional Senior Civil Judge at Nadiad.
C. Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to stay further proceedings of the Civil Suit No. 24 of 1992 pending Nadiad before the 6 th Additional Senior Civil Judge at Kada in the interest of justice;
D. Any other and such further relief as may be deemed fit just and proper may kindly be granted in the interest of justice."
3. The parties will be referred as far as possible as per their original position in the suit.
Short facts of the case.
4. The petitioner herein is the original plaintiff of Civil Suit No. 24 of 1992 filed against the respondents herein before the Civil Judge, Senior Division, Nadiad.
4.1 It is the case of the plaintiff that grandfather of the Page 2 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined plaintiff has entered into an agreement to sale on 21.02.1971 with the original defendant No.1 and 2 for suit land situated at survey No. 1238, admeasuring 1 acre, 31 guntha ( 7193 Sq. Mts.) at Nadiad.
4.2 The defendant No.1 alleged to have handed over the possession of the suit land in favour of the grandfather of the plaintiff as agreement to sale was with the possession although unregistered because the suit land was new tenure land. It is further alleged that it was incumbent upon defendant No.1 & 2 to get the suit land converted into old tenure land, then after a process of sale deed can be completed. There has been further alleged that the suit land was converted to old tenure land on 30.12.1991 and on request being made for execution of sale-deed, defendant no. 1 & 2 have refused to execute the sale deed in favour of the plaintiff as by virtue of Will of his grandfather, he is having interest in this suit land.
4.3 It has been further alleged by the plaintiff that defendant no. 1 & 2 have entered into an agreement to sale of the suit land in favour of defendant no. 3 & 4 on 02.01.1992.
4.4 Thus, in view of the aforesaid facts and circumstances, Page 3 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined suit in question is filed seeking relief of specific performance of agreement to sale on 21.01.1971 as well as seeking cancellation of agreement to sale executed by defendant no. 1 & 2 in favour of the defendant no. 3 & 4. The suit came to be filed on 09.01.1992 as well as seeking permanent injunction thereby defendant no. 1 & 2 may be prohibited to transfer/ sale/gift etc. the land in favour of either defendant no. 3 & 4 or anyone else.
4.5 The defendants have appeared in the suit and contested on various grounds.
4.6 The trial Court has framed the issue on 03.09.1997. The suit was dismissed for default on 19.02.1998 which appears to have been restored on its file on 05.08.2014.
4.7 On 27.01.2021 after about 8 years from restoration of the suit, the plaintiff has filed the impugned application below Exh. 103 under Order VI rule 17 of CPC seeking an amendment of suit thereby requested the trial Court to allow the amendment as sought for.
4.8 The main thrust of filing the impugned amendment application as it came to be noticed by the plaintiff that despite there was an order dated 22.06.2022 granting status Page 4 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined quo passed by the Appellate Court in Misc. Civil Appeal No. 131 of 1992, the defendant no. 1 & 2 have executed registered sale deed on 03.10.1992 in favour of the defendant no. 3 & 4 of subject suit land which was in complete violation of order of status quo passed by the Competent Court.
4.9 So, plaintiff by filing impugned application sought an amendment in plaint and prayer clauses thereby seek additional prayers, i.e. seeking declaration that aforesaid sale deed is void and illegal thereby defendant no.3 & 4 have not been legally received ownership right and not received actual possession of suit land. Further sought a prayer that revenue entry no. 5702 be quashed/set aside thereby to declare that name of defendant no. 3 & 4 mentioned in column of possessor be quashed and declare it as illegal. Further sought prayer that let decree of this suit be sent to Registrar, Nadiad to record on the sale deed registered at sr. no. 3398 executed by defendant no. 1 & 2 in favour of defendant no. 3 & 4 dated 03-10-1992 that same is void and illegal.
4.10 Further, sought an amendment in para-11 of plaint in relation to court fee as plaintiff now challenge sale deed dated 03-10-1992 in question by seeking prayer of its Page 5 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined cancellation, additional court fee Rs. 5200/ being paid on the suit as sale deed in question of Rs. 71,000/.
4.11 The plaintiff has requested the trial Court to allow the amendment of other paragraphs of suit thereby plaintiff can incorporate the necessary facts about the execution of the aforesaid sale deed in question.
4.12 The defendant no. 3 & 4 have objected the impugned application by filing their detailed reply below Exh. 110. The defendant no. 3 & 4 in their reply specifically contended that the plaintiff was knowing about the execution of the sale deed since its inception as revenue proceedings were initiated by plaintiff against defendants in the Revenue Courts, but at the relevant point of time, the plaintiff has not sought for any such amendment and now, the declaration as sought for in the prayer clause by way of an amendment which is hopelessly time barred. It is further contended that after framing of the issues by the Court in the year 1997, no such amendment can be granted as act of plaintiff is not bonafide but to delay the trial of suit. The defendants have also contended that considering the nature of the prayers sought by way of an amendment if granted, it would change the nature of the suit. So, the defendants vehemently opposed the impugned application.
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4.14 After hearing the parties at length, the trial Court has rejected the impugned application of the plaintiff.
4.15 Being aggrieved and dissatisfied with the impugned judgment and order dated 09.11.2022 passed by the Additional Senior Civil Judge, Nadiad below Exh. 103 in Civil Suit No. 24 of 1992, the plaintiff has preferred the present application.
Page 7 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined Submission of Petitioner-Plaintiff 5.0 Learned advocate Mr. Rashesh Parikh for the petitioner- plaintiff would submit that the impugned order passed by the trial Court is contrary to provision of Order VI rule 17 of CPC which was stood prior to its amendment thereby, requires to be quashed and set aside.
5.1 Learned advocate Mr. Parikh for the petitioner would submit that the trial Court has erroneously has taken into account amended provisions of Order VI rule 17 of CPC, thereby committed jurisdictional error in rejecting the impugned application. It is submitted that proviso of Order VI rule 17 of CPC would not apply as suit in question is filed in the year 1992. According to learned advocate for the petitioner, the issue is squarely covered by the decision of Honble Supreme Court of India in the case of State Bank of Hyderabad Vs. Town Municipal Council reported in 2007 (1) SCC 765.
5.2 Learned advocate Mr. Parikh for the petitioner would further submit that the trial Court has erroneously observed while granting amendment as sought for would change the nature of suit.
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5.4 Learned advocate Mr. Parikh would further submit that another ground on which the trial Court has rejected the impugned application in relation to limitation thereby observed that the plaintiff can not be permitted to challenge sale deed in question after about 20 years from its execution as it must be in his knowledge, is erroneous observation on the part of the trial Court thereby committed jurisdictional error in rejecting the impugned application.
5.5 Learned advocate Mr. Parikh would further submit that the trial Court was not correct in its observation that the plaintiff was negligent enough in challenging the sale deed in question as even after restoration of his suit in the year 2014, the impugned application is filed in the year 2021.
5.6 Learned advocate would submit that question of limitation would not arise while adjudicating impugned Page 9 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined amendment application. He would submit that it is settled legal position of law that the trial Court is not required to consider the issue regarding limitation while adjudicating amendment application, especially when suit filed prior to amendment in Order VI rule 17 of CPC.
5.7 Learned advocate Mr. Parikh for the petitioner would further submit that sale deed in question is undisputedly executed when there was order of status quo granted by the appellate Court thereby, sale deed in question is void transaction which can be challenged at any point of time and no period of limitation comes into play because such transaction itself is nullity in the eye of law.
5.8 Learned advocate Mr. Parikh respectfully submit that trial Court was required to decide impugned application within scope and ambit of unamended Order VII rule 17 of CPC and required to observe that to resolve real question in controversy between the parties if amendment sought for is necessary, such amendment requires to have been granted by the trial Court.
5.9 Lastly learned advocate Mr. Parikh would submit that the question of limitation was not framed by the trial Court at the relevant point of time but after granting Page 10 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined amendment, if so required, the trial Court may frame issue of limitation.
5.10 To buttress his arguments, learned advocate Mr. Parikh has relied upon the following decisions of Hon'ble Supreme Court as well as this Court in following cases,
(i) Mansukhlal Bachubhai Parmar Vs. State of Gujarat and another reported in 2009 (3) GLH 419.
(ii) Ragu Thilak D. John Vs. S. Rayappan and others reported in AIR 2001 SC 699. (relied upon Para- 5 & 6)
(iii) Pankaja and another Vs. Yellappa (dead) by Lrs. and others reported in (2004) 6 SCC 415. (relied upon Para- 4, 12, 13, 14 & 16)
(iv) Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others reported in (2006) 4 SCC 385. (relied upon Para- 15)
(v) Jehal Tanti and others Vs. Nageshwar Singh (D) through LRs. reported in AIR 2013 SC 2235. (relied upon Para- 11 to 13)
(vi) A.R. Antulay Vs. R.S. Nayak reported in (1998) 2 SCC
602. (relied upon Para- 36) Page 11 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined
(vii) Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. and another reported (2022) 16 SCC 1 (relied upon Para - 23, 71.9).
5.11 Learned advocate Mr. Parikh for the petitioner request this Court to allow the present application and to quash and set aside the impugned the impugned judgement/ order dated 09.11.2022 passed below Exh. 103 in Civil Sui No. 24 of 1992 passed by 6th Additional Senior Civil Judge at Nadiad.
Submission of Respondents-Original Defendant no. 3 & 4.
6.0 At the outset learned advocate Mr. Mrugen K. Purohit for respondent- defendant no.3 and 4 would fairly concede that provision of Order VI rule 17 of CPC would not apply to the impugned application as suit is filed in the year 1992 and amended provision of Order VI rule 17 of CPC would not be applicable to the pending suit which is filed prior to such amendment.
6.1 Learned advocate Mr. Purohit for respondent would submit that granting an amendment as sought for by the plaintiff would certainly change the nature of the suit as the main relief sought for in the suit is for a specific performance Page 12 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined of agreement to sale allegedly executed by defendant no.1 and 2 in favour grandfather of plaintiff on 21.02.1971 and now, plaintiff wants to challenge the sale deed in question executed by defendant no. 1 and 2 in favour of defendant no. 3 and 4 would surely change the nature of the suit.
6.2 Learned advocate Mr. Purohit would submit that it is settled legal position of law that if the amendment sought for would change the nature of the suit, such amendment can not be granted by the Court. So, trial Court has correctly refused the amendment as sought for in the present case.
6.3 Learned advocate Mr. Purohit would further submit that in the impugned application, the plaintiff has not disclosed the facts in regard to the date of his knowledge in relation to sale deed in question. It is submitted that the plaintiff cleverly and conveniently not disclosed his date of knowledge about sale deed in question. It is further submitted that by way of cleaver drafting an amendment which is sought for seeking declaration of cancellation of sale deed if time barred, can not be granted as it seriously prejudice the interest of the defendants.
6.4 Learned advocate Mr. Purohit would further submit that conduct of plaintiff is also required to be considered Page 13 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined which is so considered by the trial Court while rejecting the impugned application inasmuch as plaintiff was remain negligent for all these years having not sought for such declaration at relevant point of time and suit was dismissed for default in the year 1998 which was restored back in the year 2014 thereafter also, the plaintiff took more 8 yrs. to introduce such amendment in the suit. Such conduct of the plaintiff would disentitled him to seek any amendment.
6.5 Learned advocate Mr. Purohit would further submit that it was within the knowledge of the plaintiff that defendant Nos. 1 and 2 have executed registered sale deed in favour of defendant Nos. 3 and 4 on 03.10.1992 which is so confirmed by the letter of Deputy Collector, Nadiad dated 30.09.1993/ 18.10.1993 produced with list of Exh. 111 by defendant Nos. 3 & 4 which was remained uncontroverted at the end of the plaintiff having not controverted by filing any rejoinder and or submitted any other document. He would submit that just to misguide the Court, learned advocate of plaintiff has submitted before trial Court that from reading said letters, it would not confirm that it is related to suit land. But plaintiff could not submit any other litigation between parties than subject suit land.
6.6 Learned advocate Mr. Purohit would further submit Page 14 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined that assuming without admitting that sale deed in question is void transaction executed when order of status quo was granted by the Appellate Court then also, it was incumbent upon plaintiff to challenge such void agreement within three years from the date of its knowledge. In year 1992/1993, when plaintiff having challenged the revenue entry made in relation to sale deed in question before revenue authority wherein he was unsuccessfully in the year 1993 itself, cause of action was accrued to him to challenge sale deed in question within three years from acquiring knowledge of execution of sale deed in question.
6.7 It is respectfully submitted that considering the said facts and circumstances, declaration of cancellation of sale deed in question sought in the year 2021 is hopelessly time barred because if the plaintiff filed a substantive suit in the year 2021 for cancellation of sale deed in question executed in the year 1992 such suit would have been dismissed being time barred.
6.8 Learned advocate Mr. Purohit would respectfully submit that considering all these facts when the trial Court has rejected impugned application thereby, it has not committed any error much less any jurisdictional error while rejecting the impugned application and no interference is Page 15 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined required by this Court while exercising its power under Article 227 of the Constitution of India.
6.9 To buttress his arguments, learned advocate Mr. Purohit has relied upon the decisions of the Honb'e Apex Court/this Court as follow :-
(i) Radhika Devi vs. Bajrangi Singh and others reported in (1996) 7 SCC 486. (relied upon Para- 3, 4 & 5)
(ii) Shiv Gopal Sah alias Shiv Gopal Sahu vs. Sita Ram Saraugi and others reported in (2007) 14 SCC 120. (relied upon Para- 3, 4, 11, 12, & 14 )
(iii) Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and others reported in (2013) 9 SCC
485. (relied upon Para- 8)
(iv) Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi and others reported in 2008 (2) GLH 614. (relied upon Para-
11 & 15)
(v) M. Revanna Vs. Anjanamma reported in 2019 (4) SCC
332. (relied upon Para- 5 & 6)
(vi) Basavaraj Vs. Indira and others reported in (2024) 3 Page 16 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined SCC 705. (relied upon Para- 12, 13, 14 & 15)
(vii) Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. and another reported (2022) 16 SCC 1. (relied upon Para- 71.3.2)
(viii) State of Punjab and others Vs. Gurdev Singh and Ashok Kumar reported in (1991) 4 SCC 1. (relied upon Para- 7 to10)
(ix) Jadav Prabhatbhai Jethabhai and others Vs. Parmar Karsanbhai Dhulabhai and others reported in (2001) 1 GLR 309 (FB). (relied upon Para- 26 & 35) 6.10. Making above submissions, Learned advocate Mr. Purohit for the respondents request this Court to dismiss the present application.
7. No other and further submissions made by any of learned advocates appearing for the respective parties.
ANALYSIS
8. Before adverting the issue involved in the present petition, I would like to refer and rely upon the ratio of decisions of the Hon'ble Apex Court in the case of Sameer Page 17 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined Suresh Gupta TRPA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (para - 6 & 7) and in the case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (para- 15 & 16) whereby, scope of interference by this Court while exercising its jurisdiction under Article 227 of the Constitution of India is well defined.
8.1 At the outset, it is required to be noted that the trial Court has rejected the impugned application seeking amendment of plaint mainly on the following grounds/ reasons.
i. There is no due diligence on the part of the plaintiff while seeking amendment as sought for, thereby considering the proviso of Order VI rule 17 of CPC, the amendment application rejected.
ii. By granting an amendment as sought for, nature of the suit would get change which is not permissible in the eye of law to grant such amendment.
iii. The sale deed in question registered on 03.10.1992 which was within the knowledge of the plaintiff at relevant point of time and as per Section 3 of Transfer of Property Act read with Article 59 of the Limitation Act, declaration Page 18 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined sought for by way of amendment seeking cancellation of sale deed in question is time barred, thereby it can not be granted.
9. So far as first ground of rejection of the impugned application is concerned, i.e. applicability of proviso of Order VI rule 17 of CPC is concerned, the trial Court has erroneously relied upon proviso of Order VI rule 17 of CPC while adjudicating the impugned application as such proviso would not be applicable to the facts of the present case. The suit is filed in the year 1992 and amendment in Order VI rule 17 of CPC came into effect much later in point of time would not be applicable to the pending suit. Such issue no longer remain res integra as already decided by the Hon'ble Apex Court in the case of Town Municipal Council (supra). So, the trial Court was wrong in considering the proviso of Order VI rule 17 of CPC while rejecting the impugned application.
10.0 Likewise, the trial Court was also not correct in its observation that by granting amendment as sought for, it would change nature of the suit. It is true that suit is filed seeking specific performance agreement to sale executed by defendant Nos. 1 and 2 on 21.02.1971 in favour of grandfather of plaintiff, but the plaintiff has also challenged the agreement to sale executing by defendant Nos. 1 & 2 in Page 19 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined favour of defendant Nos. 3 and 4 on 21.02.1992. So, if the plaintiff is desirous to challenge the registered sale deed in question executed by defendant Nos. 1 and 2 in favour of dependent no. 3 and 4 executed on 03.10.1992 would not change the nature of the suit, as execution of sale deed in question would be on strength of the agreement to sale dated 02.11.1992 which is already subject matter of the suit.
10.1 So, the argument so canvassed by the learned advocate Mr. Purohit appearing on behalf of defendant Nos. 3 & 4 in relation to amendment sought would change the nature of the suit if it would allow, is misconceived and requires to be rejected. To that extent the arguments made by the learned advocate Mr. Parikh for the defendant Nos. 3 & 4 requires to be accepted.
10.2 Accordingly, I am of the view the trial Court has erroneously observed that by granting amendment as sought for would change the nature of the suit. According to my view, to avoid any multiply of proceeding an amendment which is sought for, to have been granted subject to satisfying other requirements of law.
11.0 Now, the only ground remains on which impugned the application was also rejected is in relation to issue of Page 20 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined limitation thereby, the trial Court has rejected impugned amendment application considering amendment as sought for is time barred.
11.1 As such learned advocate for the respective parties have submitted their arguments and placed reliance upon various citations on issue of limitation vis-à-vis its applicability while considering amendment application. The citations so submitted by learned advocate of plaintiff would be on the point that when issue of limitation is arguable one, Court should not take into account such issue and normally should grant amendment. Whereas, citations so submitted by learned advocate of defendant no.3 & 4 would suggest that if amendment sought for is hopelessly time barred and no explanation coming forth from applicant to submit such amendment be lately then in appropriate cases, Court may refuse such amendment.
11.2 Ordinarily, the issue of limitation would not be factor to be considered by the trial Court while adjudicating amendment application filed under Order VI rule 17 of CPC, especially when the issue of limitation is debatable one.
11.3 Nonetheless, if the facts and circumstances so surfaced on the record clearly spell out that relief of Page 21 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined declaration which is to be introduced by the plaintiff by way of amendment which is apparently time barred then in appropriate case, the Court may refuse such amendment.
11.4 To put it differently, if plaintiff would have filed a substantive suit seeking a declaration which is sought for by way of an amendment in pending suit, such substantive suit is from its bare reading would be time barred and liable to be dismissed then, amendment as sought for cannot be granted.
11.5 At this stage, it is profitable to refer and relied upon the decision of Hon'ble Supreme Court of India in the case M/s Revajeetu Builders & Developers Vs. M/s Narayanaswamy & Sons & Ors reported in (2009) 10 SCC 84, held as under :-
"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 Page 22 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined 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.
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) 11.6 Likewise, the Hon'ble Apex Court in the case of Sanjeev Builders Pvt. Ltd. (supra) has also succinctly summarized the principles on which an amendment application can be granted or not to be granted. It has summed up their conclusion as under :-
"71. Our 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 Page 23 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined Rule 17 of the CPC.
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 hypertechnical 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 Page 24 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined 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."
12.0 Keeping in mind the aforesaid principles and the law laid down by the Hon'ble Apex Court in the case of M/s Revajeetu Builders & Developers (supra) and Sanjeev Builders Pvt. Ltd. (supra), I would like to examine the issue germane in the impugned amendment application.
12.1 The plaintiff has undisputedly filed the impugned application in the year 2021, thereby seeking prayer to challenge the sale deed in question executed by the defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 registered on 03.10.1992. The plaintiff has cleverly and conveniently not disclosed in the impugned amendment application of his date of knowledge in relation to its execution.
12.2 The defendant Nos.3 and 4 while submitting their reply to the impugned amendment application have also submitted certain documents thereby contended that it was well within the knowledge of the plaintiff that defendant Page 25 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined Nos.1 and 2 have executed sale deed dated 03.10.1992 in favour of defendant Nos.3 and 4. The letter dated 30.09.1993/18.10.1993 issued by the Deputy Collector, Nadiad submitted by the defendant Nos. 3 and 4 with the list of document Exh. 111 would clearly indicate that the plaintiff was appellant of RTS / Appeal/7/1993, whereas opponents were defendants. It has been so mentioned in the said letter that appeal filed by the plaintiff is dismissed and order passed by the Mamlatdar, Nadiad in RTS/Dispute/Case No. 9 of 1992 is confirmed. It is true that due to old records, a copy of the order passed by the Deputy Collector, Nadiad could not be submitted by the defendant Nos. 3 and 4 on record which is so confirmed from the letter dated 12.07.2021 issued by the office of Deputy Collector, Nadiad, which was submitted with the said list. The stand taken by plaintiff before trial Court that reading said documents, it is not confirm that its in relation to suit property. It is not even a case of plaintiff that there was any another dispute in relation to different parcel of land between same parties then, plaintiff could not played ignorance about revenue proceeding which were initiated by himself. This conduct of the plaintiff speaks for itself which is not bona-fide.
12.3 In any case, the fact remain that the plaintiff had initiated revenue proceedings against defendants and Page 26 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined challenged the entries made in favour of defendant nos. 3 and 4 in the year 1993 then, plaintiff could not have played ignorance about not knowing of the factum of execution of sale deed in question.
12.4 Furthermore, certified copy of mutation entry no. 5700, 5701, 5702 also submitted with the list which is also sought to be challenged by way of amendment. Thus, in view of the aforesaid facts, documents, and non-disclosure of date of knowledge by the plaintiff in the impugned amendment application in relation to sale deed in question would clearly suggests that it was well within the knowledge of the plaintiff about execution of the sale deed at relevant point of time in year 1992/1993 itself.
12.5 It is well settled legal postilion of law by way of cleaver drafting, the plaintiff can not allow to maintain the suit which is otherwise not maintainable. Such action of litigant requires to be taken seriously by the Court as its duty to nip it in the bud such action at hands of unscrupulous litigant.
12.6 At this stage, the observation made by the Hon'ble Apex Court in the case of Shiv Gopal Sah alias Shiv Gopal Sahu (supra), more particularly in Para- 11, 12 & 14, Page 27 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined which is reproduced as under :-
"11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, atleast regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.
12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.
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14. In T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricty Board & Others [(2004) 3 SCC 392] a three Judge Bench of this Court relying on L.J. Leach & Co. Ltd. vs. Jardine Skinner and Co. [AIR 1957 SC 357] reiterated as under:
"The law as regards permitting amendments to the plaint is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. it was held that the court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be Page 28 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the court to order it."
The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation."
12.7 Thus, when the plaintiff has come out with an amendment application filed in the year 2021 without giving any explanation about delay in seeking amendment as sought for declaration thereby, to challenge a sale deed in question executed in the year 1992 then, trial Court was well within his right to reject the impugned application having found that declaration as sought for is time barred.
12.8 The trial Court has also considered the matter from another point of view by placing reliance upon Section 3 of Transfer of Property Act and after considering the decision of the Hon'ble Apex Court in the case of Smt. Dilboo (Dead) By Lrs. & Ors vs Smt. Dhanraji (Dead) And Ors reported in 2000 (7) SCC 702, ultimately held that it would in deemed knowledge of plaintiff about execution of registered sale deed dated 03.10.1992 thereby, the trial court has found an amendment sought for is hopelessly time barred. So, it has rejected the impugned application.
13.0 So far as submission made by the learned Page 29 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined advocate Mr. Parikh for the petitioner that the sale deed in question has been executed despite an order of status quo granted by the appellate Court thereby such sale deed is void ab-initio and nullity and there would not be any period of limitation so prescribed under the Limitation Act to challenge such void transaction. According to learned advocate Mr. Parikh that at any point of time, the plaintiff can challenge void transaction. The decision in the case of Jehal Tanti (supra) the Hon'ble Apex Court has held that the sale deed was executed in favour of respondent No.1 in the teeth of order of injunction passed by the trial Court the same appears to be unlawful. It has been held that such unlawful agreement is void in view of Section 23 of Indian Contract Act 1872. There is no cavil that in the case where an injunction has been granted by the Court despite that party entered into some kind of agreement, it would be considered as a void agreement.
13.1 The question needs to be examined as to whether such void agreement can be challenged at any pint of time as per sweet-will of complaining party? Such question was never raised before the Apex Court in the case of Jehal Tanti (supra). So, the said decision would not be of much help to the submissions made by the learned advocate Mr. Parikh for the petitioner in relation to challenge sale deed in Page 30 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined question after more than 29 years which according to the plaintiff is void and can be challenged at any time.
13.2 Learned advocate Mr. Praikh for the petitioner has also relied on the decisions of the Hon'ble Apex Court in the case of A. R. Antulay (supra) so, it contended that if transaction is nullity, it can be challenged at any point of time. It is worth to note that fact and observation made by the Hon'ble Apex Court in the case of A. R. Antulay (supra) reads as under :-
"36. In Kiran Singh v. Chaman Paswan Venkatarama Ayyar, J. observed that the fundamental principle is well established that a decree passed by a court without jurisdiction is a nullity, and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon - even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
(emphasis supplied) 13.3 The ratio of said decision would not at all applied to the facts of present case as before Apex Court, question of validity of order passed by Court having no jurisdiction thereby having so held it as nullity thereby held that its validity could be set up whenever and wherever it is sought to be enforced or relied upon. Whereas, in case on hand, the declaration which is sought for by the plaintiff is for Page 31 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined cancellation of registered sale deed in question being void, illegal etc.. The order passed by Court/Authority if held nullity can not be equated with transaction taken place between parties held to be void as both stands on different footing.
14.0 So, the issue would arise as to whether such void contract/agreement (sale deed in question) can be challenged at any point of time as per sweet will of complaining party? In the present case, plaintiff?.
14.1 To address the said issue, I would like to refer few provisions of Limitation Act, 1963 (herein after referred as Act, 1963). The declaration seeking transaction void and or seeking any declaration would 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 :-
Description of suit Period of limitation Time from which period begins to run PART III.--SUITS RELATING TO DECLARATIONS Page 32 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined
58. To obtain any other Three years When the right to sue declaration first accrues PART IV.--SUITS RELATING TO DECREES AND INSTRUMENTS
59. To cancel or set Three years When the facts entitling aside an instrument or the plaintiff to have the decree or for the instrument or decree rescission of a 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 years When the right to sue no period of limitation is accrues.
provided elsewhere in this Schedule.
14.2 To answer said issue, it is profitable to refer and to rely upon the decisions of the Hon'ble Apex Court in the case of Premsinh Vs. Birbal reported in (2006) 5 SCC 353, wherein held as under :
"[14] A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under:
"31. When cancellation may be ordered.--(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."Page 33 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025
NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined [15] Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief.
[16] When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.
[17] Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be.
[18] Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. [See Unni & Anr. vs. Kunchi Amma & Ors. 1891 (14) ILR(Mad) 26 and Sheo Shankar Gir vs. Ram Shewak Chowdhri & Ors. 1897 (24) ILR(Cal) 77.
[19] It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from old Article 91 of 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and 114 of 1908 Act had been combined.
[20] If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.
[28] If a deed was executed by the plaintiff when he was a Page 34 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court."
(emphasis supplied) 14.3 Likewise, in a case of Ramti Devi Vs. Union of India reported in (1995) 1 SCC 198 observed and held as under :-
"[2] The question is whether the suit is within limitation. In the evidence, it was admitted that she had knowledge of the execution and registration of the sale deed on 29/1/1947. Initially a suit was filed in 1959 but was dismissed as withdrawn with liberty to file fresh suit. Admittedly, the present suit was filed on 30/7/1966. The question, therefore, is whether the suit is within limitation. Article 59 of the Schedule to the Limitation Act, 1963, relied on by the appellant herself, postulates that to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation is three years and it begins to run when the plaintiff entitles to have the instrument or the decree cancelled or set aside or when the contract rescinded first became known to him. As seen, when the appellant had knowledge of it on 29/1/1949 itself the limitation began to run from that date and the three years' limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri V. M. Tarkunde, learned Senior Counsel for the appellant, that the counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale Page 35 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined deed was executed for valuable consideration to discharge pre- existing debts and it is a registered document. Apart from the prohibition under Section 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the voidity of the sale deed or its binding nature was raised nor a finding recorded that the sale deed is void under Section 23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29/1/1947, the date on which the sale deed was executed and registered and the suit was filed on 30/7/1966, the suit is hopelessly barred by limitation.........."
(emphasis supplied) 14.4 Even otherwise, Article 113 of the Act, 1963 also suggests that if there is no period of limitation is provided in schedule of Act, 1963 a period of three years has been prescribed to the right to sue first accrues. Thus, a conjoint reading and ratio laid down by Apex Court in its aforesaid decisions, it would not be gainsaid that the provisions of the Act, 1963 would have no application at all in a case where the declaration sought for is in relation to the transaction being void and seeking cancellation of such void transaction.
14.5 As observed herein above, in present case, since plaintiff is seeking declaration, albeit by way of an Page 36 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined amendment after about 29 years, to have the sale deed in question cancelled being void, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So, the suit necessarily to be filed within three years from the date when the cause of action had accrued to plaintiff.
14.6 In any case, even if the transaction/instrument is void and plaintiff seeks declaration of such transaction/instrument void/illegal etc. then, plaintiff requires to challenge it within the period of limitation. It is not fathomable that such void transaction/instrument can be challenged at any point of time. Thus, considering from any angle, the amendment sought by the plaintiff is hopelessly time barred.
14.7 So, in view of the aforesaid provisions of the Act, 1963 as well as ratio of Hon'ble Apex Court in the case of Premsingh (supra) and Ramti Devi (supra), if apply to the present case, plaintiff was required to challenge the sale deed in question when plaintiff first came to know about it i.e. three years from date of such knowledge as right to sue accrued at that time. Having so observed in earlier part of this judgment and so also by the trial Court, the plaintiff was Page 37 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025 NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined well aware about the sale-deed in question in year 1992/1993 itself, he was required to challenge the sale deed in question within three years from such period. The plaintiff having remain indolent for decades and wake up from slumber, sought to challenge the sale deed in question in the year 2021, considering the aforesaid provision of Limitation Act, 1963, his claim is hopelessly time barred.
14.8 Thus, the decisions so relied by the learned advocate Mr. Parikh for the petitioner would not render any assistance to his submissions rather in the light of said facts and law, plaintiff having challenged the sale deed in question after about 29 years from his knowledge is apparently time barred then, in view of what has been so held by the Hon'ble Apex Court in the cases of Premsingh (supra) and Ramti Devi (supra) read with M/s Revajeetu Builders (supra), Sanjeev Builders(supra) and Gopal Sah alias Shiv Gopal Sahu (supra), no error much less gross error of law is found with impugned order.
15. Lastly, I would like to observe that as such real controversy involved in the suit would be specific performance of an agreement to sale executed between grandfather of plaintiff with defendant no.1 & 2 and as such rest of prayers so made in the suit is consequential reliefs.
Page 38 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined 15.1 Thus, in facts and circumstance of the present case, when trial Court while exercising its discretionary powers thereby not allowed the amendment application filed by the plaintiff, such discretionary order may not be interfered by this Court while exercising its power under Article 227 of the Constitution of India merely because some other view is also possible which is in fact none. So, even considering the ratio laid down by the Hon'ble Apex Court in the case of Sameer Suresh Gupta (supra) and Garment Craft (supra), I would not like to interfere with impugned order by exercising the powers under Article 227 of the Constitution of India in favour of the plaintiff.
Conclusion.
16. The upshot of the aforesaid observations, discussions and reasons, there is no merits in the present petition as the impugned amendment application filed by the plaintiff thereby, sought the declaration in turn to get it cancel registered sale deed dated 03-10-1992 in question executed by defendant no. 1 and 2 in favour of defendant no. 3 and 4 is correctly not allowed by the trial Court as amendment sought for is hopelessly time barred.
Page 39 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025NEUTRAL CITATION C/SCA/26326/2022 JUDGMENT DATED: 07/03/2025 undefined 16.1 There is no gross error of law and or jurisdictional error committed by the trial Court while rejecting the impugned amendment application filed by the plaintiff. Thus, there is no merit in the present application, which requires to be dismissed. The present application is hereby dismissed. Notice discharged. No order as to costs.
16.2. In view of aforesaid, Civil Applications would not survive and disposed of accordingly.
Sd/ (MAULIK J.SHELAT,J) SALIM/ Page 40 of 40 Uploaded by SALIM(HC01108) on Fri Mar 07 2025 Downloaded on : Sat Mar 08 01:32:43 IST 2025