Gujarat High Court
Jasuben vs Alkapuri on 3 September, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCA/451/2008 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 451 of 2008
=========================================================
JASUBEN
WD/O JAYANTIBHAI NAGINBHAI - Petitioner(s)
Versus
ALKAPURI
COOPERATIVE HOUSING SOCIETY LTD - Respondent(s)
=========================================================
Appearance
:
MR
NV GANDHI for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4
MR ASPI M KAPADIA
for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 03/03/2008
ORAL
ORDER
Heard learned advocates appearing for the parties for final disposal of the petition.
The petitioners, original plaintiffs have challenged an order dated 1.12.2007 passed by the learned Additional Senior Civil Judge, Surat below application exh.65 in Regular Civil Suit No. 669 of 1985. By the impugned order, the learned Judge was pleased to reject the said application in which the petitioners had prayed for amendment of their suit. They had also prayed for permission to join the Town Planner, Surat Municipal Corporation and Surat Municipal Corporation as defendant nos. 2 and 3 in the said suit.
The suit was instituted with the prayer for declaration and permanent injunction with respect to land bearing final plot no. 29/B in Town Planning Scheme No.3 of Katargam, Surat. According to the plaintiffs they were allotted the said land pursuant to finalization of Town Planning Scheme. They had filed application exh.5 seeking injunction against dispossession from suit land, which came to be rejected in the year 1985. They thereafter moved amendment application on 9th April 2003. By way of amendment the petitioners wanted essentially to add a prayer for restoration of possession of suit land. They also wanted to add alternative prayer to the effect that in case it is not possible to grant such restoration, the Town Planning authorities should allot alternative lands to the petitioners. This came to be turned down by the learned Judge by the impugned order.
Learned advocate of the petitioners Shri N.V.Gandhi submitted that the reasons stated for rejecting the amendment application are not germane. He submitted that by virtue of the amendment, the petitioners wanted to join authorities as co-defendants and wanted the prayers to be added. It was submitted that such amendment would not change the nature of the suit and would also not cause any prejudice to the defendant.
On the other hand learned advocate Shri Kapadia, for the respondent strongly opposed the petition. He submitted that the amendment would change the nature of the suit. That the petitioners were aware about the rejection of exh.5 application since the year 1985, despite which amendment was sought in the year 2003. That the amendment sought is barred by limitation. That application for joining new defendants also should not have been entertained for want of statutory notice and without hearing the proposed defendants.
Several decisions of different Courts as well as apex Court were cited by the counsel for the respondent. Reference to these decisions will be made at a later stage.
Having thus heard learned advocates appearing for the parties, I find that the petitioners had earlier instituted a suit seeking declaration and permanent injunction with respect to the suit lands. This was on the premise that possession of the land in question is required to be protected. However, by virtue of amendment, they prayed for three different things. Firstly, they sought permission to add the Town Planner, Surat Municipal Corporation and the Surat Municipal Corporation as co-defendants. They also sought permission to add prayer for being given actual possession of the final plot no. 29B. They also prayed that in the alternative, if it is not possible for the Town Planner to hand over vacant possession of the said land, some alternative land be allotted to the petitioners.
The prayers made by the petitioners in the amendment application could not have been refused. Firstly, the learned Judge held that the claim is barred by limitation and therefore the amendment should be refused.
It is by now settled that whether the claim made in the amendment would eventually be allowed or not, is a question that can be gone into at the time of considering the application seeking amendment of pleadings. It is also stated by the apex Court on number of occasions that in a given case even amendment bringing disputes belatedly, can be permitted. However, the amended relief should be made subject to limitation and to safeguard the interest of the parties, amendment should relate to the date of the application. Reference in this regard is made to the decisions of the apex Court in the case of Pankaja v. Yellappa, (2004) 6 SCC 415 and Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559.
With respect to the question that whether the proposed amendment would alter the nature of the suit and whether such amendment be granted or not, I had an occasion to deal with the entire issue in Special Civil Application No. 29552 of 2007 decided on 6.2.2008. Factual background was noted as under:
?S2.2 Though initially, the Trial Court granted stay in his favour, the Appellate Court allowed the appeal of the defendant and set aside the interim injunction. The petitioner approached this Court by filing Special Civil Application No.9402 of 2005 which came to be disposed of on 27.6.2005 requesting the learned Judge to give top priority to the pending regular civil suit and to try and dispose of the same by 31st December 2006.
2.3 On account of these developments, the petitioner moved an application Ex.40 seeking amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure. By way of amendment, the petitioner wanted to add a few averments and prayers in the suit. In essence, he wanted to add prayer that the encroachment of the respondent in the said land on which he is the owner be removed and he be restored his land.
2.4 The learned Judge, however, rejected the amendment application by the impugned order dated 28.2.2007. The petitioner is therefore before this Court in the present petition.??
In this background, following observations were made:
?S6. In the case of State of A.P. v. Pioneer Builders, (2006) 12 SCC 119, it was observed by the Apex Court that the power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice and unless serious injustice or irreparable loss is likely to be caused to the other side, the court should adopt liberal approach and not a hyper-technical approach.
6.1 In the case of Pankaja v. Yellappa, (2004) 6 SCC 415, it was observed that the court has discretion to allow amendment even where the relief sought to be added is by amendment is allegedly barred by limitation. It was observed that in a case where the amendment subserves the ultimate cause of justice and avoids further litigation, the same should be allowed.
6.2 In the case of Rajesh Kumar Aggarwal v. K.K.Modi, (2006) 4 SCC 385, the Apex Court observed that amendment of pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice.
6.3 In the case of Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, the Apex Court while allowing the amendment to avoid multiplicity of suit, to protect the interest of the defendant provided that the reliefs sought by the plaintiff by the amendment must be deemed to have been made on the date on which the application for amendment was made.
6.4 In the case of Ganpat Singh v. Sher Bahadur Singh, AIR 1978 Allahabad 66, the Allahabad High Court allowed the amendment of the plaint even at the appellate stage where the Trial Court had dismissed the suit for declaration and permanent injunction on the ground that though the plaintiff was the owner, but defendant was in possession of the suit property.
6.5 In the case of Kisan v. Sarangdhar, AIR 1983 Bombay 442, the Bombay High Court in a case where the plaintiff had filed suit seeking declaration of ownership and permanent injunction observed that the relief of injunction is consequential based on the relief of declaration of ownership. Amendment of consequential relief does not change nature of suit. It was further observed that rejection of amendment application seeking to include relief of possession instead of relief of injunction was illegal.
6.6 In the case of Amar Singh Chetri v. Bijay Chandra Modak, AIR 1993 Gauhati 50, the High Court was dealing with a case of amendment of plaint sought by the plaintiff. The plaintiff had filed a suit for declaration and permanent injunction. During the pendency of the proceedings, the defendant trespassed into property. The plaintiff had prayed for conversion of the plaint to one for possession. The High Court found that no prejudice or irreparable injury was likely to be caused to the defendant. It was found that amendment was necessary to adjudicate the real issues between the parties and the amendment was granted.
6.7 In the case of Abdul Hannan Khann v. Chandra Sekhar, AIR 1986 Orissa 236, the Orissa High Court observed that though initially the suit was for permanent injunction, the amendment seeking to include prayer for possession would not change nature of the suit and the amendment was allowed.
6.8 With respect to the contention regarding the bar of Rule 2 Order 2 of the CPC raised by the counsel for the respondent, it may be noted that this issue is squarely answered by the learned single Judge of this Court in the case of Chimanlal v. Hasmukhlal, reported in 17 GLR 40. It was held that important part of sub-rule 2 of Rule 2 of Order 2 of CPC is that the plaintiff shall not afterwards sue in respect of the portion so omitted or relinquished. It was observed that in that case, the plaintiff had not filed any other suit in respect of the portion so omitted or relinquished. In the very suit, the plaintiff wanted to amend the plaint and include the claim which through mistake came to be omitted. The court, therefore, observed that there could not be any bar of Order 2 Rule 2 of the CPC.??
In view of the above conclusions, I find that the amendment was wrongly denied. If at all the entire issue should have been made subject to limitation and it could also be provided that the amendment shall take effect from the date of the application and not from the date of the suit.
Coming to the authorities cited by the counsel for the respondent, in the case of The Municipal Corporation of Greater Bombay v. Lala Pancham and others, reported in AIR 1965 SC 1008, as well as in the case of Kanda and others v. Waghu, reported in AIR (37) 1950 Privy Council, 68, the Courts have opined that the amendments involving set up of new case should not be allowed. This is too well established legal proposition to need any authorities.
In the case of G.Chinna Ramalingaiah and others v. Pedda Sunkanna Goud and another, reported in AIR 1993 Andhra Pradesh, 47, it was held that suit for permanent injunction should not be permitted to be converted into suit for specific performance and for possession. I have, however, as noted above, decided this issue in the earlier decision dated 6.2.2008.
In the case of Arundhati Mishra (Smt) v. Sri Ram Charitra Panday, reported in (1994) 2 SCC 29, it is observed that the plea of adverse possession could not be permitted to be raised since earlier the defendant had taken plea passed on title and the two are mutually inconsistent. The ratio laid down therein, however does not apply in the facts of the present case.
In the case of Radhika Devi v. Bajrangi Singh and others, reported in AIR 1996 SC 2358, the apex Court observed by way of amendment the accrued right in favour of the respondents cannot be defeated.
In the case of Pravat Chandra Giri v. Amulya Chandra Bahaduri and others, reported in AIR 1927 Calcutta 340 and in the case of Rasiklal Shankerlal Soni v. Natverlal Shankerlal Upadhyay and others, reported in 1975 GLT 533, the Courts were dealing with the provisions contained under Order 1 Rule 10(2) of the Civil Procedure Code.
As noted earlier, as per the plaintiffs, they were allotted a particular piece of land pursuant to finalization of a town planning scheme. The defendant however claims to be in possession of such land. The plaintiffs therefore want an alternative prayer for allotment of another land. In that view of the matter, presence of the authorities of the Surat Municipal Corporation would be necessary to decide the issues arising between the parties. Joining them as co-defendants, therefore, was not, in any manner unjust. There is no statutory requirement pointed out for hearing proposed defendants before joining them as defendants in the suit. Further, whether suit would be maintainable against them in absence of prior notice is a question that can be gone into while trying the suit and while deciding the amendment application. Further, both these objections would be open if at all to such proposed defendants and it is doubtful if the present respondent can oppose amendment on such grounds.
In the result, petition is allowed. Amendmen application exh.65 stands allowed. However, it is clarified that such amendment shall be subject to the question of limitation and shall relate to the date of the application.
Since the amendment was brought on a rather belated stage, the petitioners shall also pay a cost of Rs.5000/- to the respondent.
Subject to above safeguards, the petition is disposed of.
Direct service permitted.
(Akil Kureshi,J) Jayanti* Top