Gram Panchayat Chikhli vs Rameshbhai Mervanbhai Patel on 23 September, 2014

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Gujarat High Court

Gram Panchayat Chikhli vs Rameshbhai Mervanbhai Patel on 23 September, 2014

Bench: S.H.Vora

         C/SCA/6743/2013                                 ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 6743 of 2013
                                   TO
            SPECIAL CIVIL APPLICATION NO. 6749 of 2014
================================================================
             GRAM PANCHAYAT CHIKHLI....Petitioner(s)
                          Versus
          RAMESHBHAI MERVANBHAI PATEL....Respondent(s)
================================================================
Appearance:
MR ABHISHEK M MEHTA, ADVOCATE for the Petitioner(s) No. 1

        CORAM: HONOURABLE MR.JUSTICE S.H.VORA

                           Date : 23/09/2014


                             ORAL ORDER

1. Challenge in the present petitions filed under Articles 226 and 227 of the Constitution of India, is the order dated 22.01.2013 passed by the learned Principal Civil Judge, Chikhli below Exh.22 in Regular Civil Suit Nos.27 of 2011, 28 of 2011, 32 of 2011, 30 of 2011, 29 of 2011, 31 of 2011 and 34 of 2011 respectively whereby, the learned trial Judge permitted the plaintiff to add proposed amendments made in terms of paras 3(A) to 3(D) and 3(F).

2. According to learned advocate Mr.A.M. Mehta for the petitioner

- original defendant, such proposed amendment, if allowed, then it would change structure of the suit and, therefore, the respondent - plaintiff ought to have filed a separate suit for claiming relief of the nature, as sought for, by way of proposed amendments in terms of paras 3(A) to 3(D) and 3(F). It is submitted that the proposed amendment would set-up a new case and, therefore, the same would cause prejudice to the case of the petitioner - original defendant.

Page 1 of 3 C/SCA/6743/2013 ORDER

3. Upon perusal of the impugned order and after hearing submissions made at bar, one fact is clear that the plaintiff was compelled to amend the plaint because of the defendant's action of demolition of the disputed construction pending suit. Under the circumstances, such action can be challenged in the original action itself. Therefore, the plaintiff is well within his right to incorporate various acts of the petitioner - original defendant so as to include the same in the subject matter of the original action.

4. It is settled that under the provisions of Order 6 Rule 17, the Court is vested with unfettered discretion to allow amendment or pleadings of a party in such a manner and upon such terms as it appears to the Court to be just and proper. The Court has to bear in mind that ultimately the complete and full justice has to be done to the party and in a case where the nature of the suit is not going to be changed or the other party will not be prejudiced, technical approach is not warranted. Besides, multiplicity of litigation can also be avoided as in the present case, the amendment which is not prejudicial to the defendants is permitted. Therefore, the impugned order is not based upon valid and legal reasons and as jurisdiction vested in the trial Court has not been exercised in accordance with law, failure of justice has occasioned warranting the interference of this Court under its supervisory jurisdiction.

5. The power to allow the amendment is wide and exercised at all stage of the proceedings in the interest of justice on the basis of guidelines laid down by the Hon'ble Apex Court in catena of decisions. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But, it is equally true that the courts while deciding such application shall not adopt technical approach. Technicalities of law should not be permitted to hamper the courts in administration of justice between the parties. In other Page 2 of 3 C/SCA/6743/2013 ORDER words, the amendments are required to be allowed in the pleadings to avoid uncalled multiplicity of proceedings. Equally, it is true that it is general rule that no party should be allowed, by amendment, to set up a new case or new cause of action, particularly, when a suit on the new case of cause of action is barred. Further, a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by amendment can be stating, in substance, to be already in the pleadings sought to be amended. In other words, it can be said that where the amendment does not constitute addition of new cause of action or raise a different case, but amounts to no more than different or additional approach to the same facts, the amendment ought to be allowed even after expiry of the statutory period of limitation. The object of the Rule of procedure is to decide the rights of the parties and not to punish them.

6. So, considering the original action and nature of proposed amendment, it cannot be concluded that the plaintiff has created any new case or any new cause of action arises because of the defendant's action during pendency of the suit.

7. Under the circumstances, no case is made out to interfere with the impugned order as the learned trial Judge has not committed any illegality or impropriety in passing the impugned order. Therefore, the present petitions are hereby rejected.

(S.H.VORA, J.) Hitesh Page 3 of 3

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