Gujarat High Court
Kapilaben D/O. Now Decd. Manilal ... vs Rameshbhai Manilal Patel & 3 on 17 July, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/6842/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6842 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KAPILABEN D/O. NOW DECD. MANILAL JIVANBHAI AND W/O
AMRATBHAI HARIBHAI PATEL
Versus
RAMESHBHAI MANILAL PATEL & 3
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE FOR MR AB MUNSHI,
ADVOCATE for the Petitioner
MR ABHISHEK M MEHTA, ADVOCATE for the Respondent No. 3
MR DHAVAL D VYAS, ADVOCATE for the Respondent No. 4
RULE NOT RECD BACK for the Respondents No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 17/07/2017
ORAL JUDGMENT
1. The petitioner has filed Special Civil Suit No.85 of 2007 against the respondents - defendant nos.2 to 5 and her father - defendant no.1 for declaration that since, the suit lands are ancestral lands, the defendant nos.2 and 3 were given limited rights by the defendant no.1 as 'Karta' - Manager of undivided family and they had no right or authority to transfer the suit lands with or without consent either to the defendant no.5 or Page 1 of 12 HC-NIC Page 1 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT to any other person. The petitioner has also prayed to order for cancellation of the sale deed executed by the defendant nos.2 and 3 in favour of the defendant no.5 for the suit lands by declaring the sale deed as illegal and further prayed for permanent injunction restraining the defendant no.5 from transferring, alienating or creating any third party interest or change the purpose of the suit lands or from making any construction or development on the suit lands based on the sale deed dated 03.03.2004 executed in favour of the defendant no.5. In her suit, the petitioner preferred an application at exhibit 42 seeking to amend the plaint to incorporate the averments that since, defendant no.1 has passed away on 18.03.2011, the plaintiff and defendant nos.2 to 4 shall have 1/4th undivided share as direct descendants of defendant no.1 in the suit lands with a prayer to partition the suit lands and to give her 1/4th undivided share from the suit lands. The petitioner also submitted an application at exhibit 43 seeking permission to produce the death certificate of defendant no.1 as evidence of the death of defendant no.1 pending the suit. Learned 9th Additional Senior Civil Judge allowed the application at exhibit 43 for amendment and partly allowed the application at exhibit 42 for amendment by order dated 10.04.2014 and permitted amendment in the plaint only for deleting the name of the defendant no.1 from the plaint. The petitioner being aggrieved by the said order, in so far as the amendment sought by the petitioner in the plaint is not permitted, filed the present petition under Article 227 of the Constitution to challenge the order dated 10.04.2014 passed below application exhibit 42 to the extent that the prayer made for amendment in the suit is rejected.
2. Learned senior advocate Mr.Percy Kavina appearing with learned advocate Mr.Munshi submitted that the amendment Page 2 of 12 HC-NIC Page 2 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT sought in the plaint would not change the character of the suit and in fact, the amendment would fall within the same dispute and the claim made in the suit. Mr.Kavina submitted that the pleading by the proposed amendment and even the prayer in the proposed amendment would not run contrary to the original pleadings made by the petitioner in the plaint. Mr.Kavina submitted that the declaration sought in the suit of the prayer for cancelling sale deed is on the premise that the suit lands are ancestral lands wherein the petitioner has got undivided share and if such declaration is given and the sale deed is cancelled, the petitioner will continue to have her undivided share in the suit lands and for such undivided share in the suit lands, it is always open to the petitioner to claim partition to get her share in the suit lands and, therefore, on the same premise, her claim for partition of her share in the suit lands could very well be taken in dispute raised in the suit and could be taken as required to decide the controversy in the suit. Mr.Kavina submitted that when the character and the nature of the suit and the dispute raised in the suit is not to be changed by amendment, if granted, the amendment is always liberally granted even if some relief the purpose is to avoid multiplicity of the proceedings. Mr.Kavina submitted that the petitioner being daughter of the joint Hindu Family, if otherwise entitled to seek partition of joint Hindu Family properties by filing the separate suit, it will be, in fact, more required to allow the petitioner to raise such claim in the pending suit to avoid filing of one more pleadings. Mr.Kavina has relied upon the decision of the Hon'ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu And Another, reported in (2002) 7 SCC 559. He, thus, urged to allow the petition and to quash and set aside the impugned order in so far as the learned Judge has refused the amendment proposed in the application at exhibit 42 and allowed the petitioner to Page 3 of 12 HC-NIC Page 3 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT amend the plaint as per the application at exhibit 42.
3. Learned advocate Mr.Dhaval Vyas appearing for respondent no.5 submitted that amendment if allowed will definitely change the character and nature of the suit. Mr.Vyas submitted that the proposed amendment would not run parallel to the original pleadings and it will be altogether different claim for partition which will change the character of the suit. Mr.Vyas submitted that even otherwise, by virtue of Section 34 of the Specific Relief Act and as per Order II, Rule 2 of the Civil Procedure Code ("the Code"), the suit for partition of share in the suit properties shall be barred and if the petitioner is estopped from bringing the suit for partition or for asking the possession of her undivided share on the same cause of action, she cannot be permitted to make such claim by amendment in pending suit. Mr.Vyas submitted that even otherwise, on the date of amendment application, the suit for partition shall be barred by limitation and, therefore, the amendment for such claim in pending suit cannot be allowed in exercise of powers under Order VI, Rule 17 of the Code. Mr.Vyas has relied on the decision in the case of Van Van Vibhag Karmchari Griha Nirman Sahakari Sanstha Maryadit (Regd) Vs. Ramesh Chandra and others reported in AIR 2011 SC 41. Mr.Vyas, thus, urged to dismiss the petition.
4. Learned advocate Mr.Abhishek Mehta appearing for respondent no.3 submitted that for the purpose of amendment in the plaint, the Court is required to consider whether grant of amendment will change the character and the nature of the suit and whether exercise of powers under Order VI, Rule 17 of the Code is called for to avoid multiplicity of the proceedings for same cause of action.
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C/SCA/6842/2014 JUDGMENT
5. The Court having heard learned advocates for both the sides finds from the copy of the plaint at Annexure - A that the petitioner in no uncertain terms has stated in the plaint that the suit lands are ancestral properties originally belonged to Jivanbhai Kalidas - grandfather of the petitioner, who gave the lands to the wife of defendant no.1 named Bai Amba d/o. Ratajji Dahyabhai for her maintenance till she lived. As further averred, after she died, defendant no.1 remarried with Kantaben d/o. Becharbhai Prabhubhai. The petitioner and defendant no.3 are children of the second wife, whereas, defendant no.2 and defendant no.4 are children of the first wife of the defendant no.1. Since, the suit lands are ancestral properties, defendant no.1 was managing the suit properties as "Karta" of undivided family and the defendant nos.2 and 3 had limited right of maintenance and have no right as absolute owners of the suit properties and the suit properties have continued to be the properties of undivided family and, therefore, as per Section 6 of the Hindu Succession (Amendment) Act, 2005, the plaintiff has undivided share in the suit properties which the plaintiff has never released or relinquished either to the defendants or in favour of anybody and the defendants have no right or title to sell the suit properties to the defendant no.5 without the consent of the plaintiff. The plaintiff claims that she and the defendant nos.1 to 4 have joint ownership and possession in the suit properties and their rights of the joint possession and joint ownership have continued. With such claim of share in the ancestral properties and with assertion that the plaintiff with defendant nos.1 to 4 is in joint possession and ownership of the suit properties, the declaration in the suit is sought that the suit lands being ancestral properties and the defendant nos.2 and 3 since having limited rights in the suit properties, they have no authority or right to transfer the suit properties, either to Page 5 of 12 HC-NIC Page 5 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT the defendant no.5 or to anybody and to declare that the sale deed executed in favour of the defendant no.5 is illegal. Therefore, in the nature of the pleadings made in the plaint that the suit properties are ancestral properties and the plaintiff has got undivided share in the suit properties, it was always and it will be open to the petitioner to claim partition of her share from the suit properties. Pending the suit, the defendant no.1 - father of the petitioner died on 18.03.2011. On demise of the defendant no.1, the petitioner preferred an application at exhibit 42 on 11.05.2011 to amend the plaint to bring on record the factum of death of the defendant no.1 and to specifically claim that now she with defendant nos.2 to 4 shall have 1/4th undivided share in the suit properties and to amend the cause of action for seeking partition for 1/4th undivided share and for passing the decree for 1/4th undivided share from the suit properties.
6. The Court finds that the above such amendment sought in application at exhibit 42 would not change the character and the nature of the suit but in fact, it would be within the claim made and dispute raised in the suit. If the suit without amendment is to be allowed, the petitioner will be held entitled to have undivided share in the suit properties and the sale deed made without her consent could be declared as illegal and ineffective and the petitioner then certainly can ask for the partition of her undivided share in the suit properties. So long as, the ancestral properties remain undivided, for a person having undivided share, it will be continuous or recurring cause of action to bring the suit for partition. Therefore, if the amendment as prayed for in application at exhibit 42 is allowed, it would neither be contrary to the original pleadings nor would change the character and the nature of the suit, it would in fact, avoid multiplicity of the Page 6 of 12 HC-NIC Page 6 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT proceedings between the parties. In fact, the real controversy in the suit is whether the plaintiff has got undivided share in the suit properties. In the context of controversy in such suit when by amendment in the plaint, the plaintiff claims partition of 1/4th undivided share after the death of her father - defendant no.1, it could be said to be necessary for the purpose of determining the real question in the controversy in the suit and follow up action of dividing the share in the suit properties will be depending on deciding such controversy. Therefore, in no way it could be said that the amendment sought by the petitioner would change the original character of the suit. Learned advocate Mr.Vyas, however, submitted that on account of bar contained in Order II, Rule 2 of the Code and by virtue of Section 34 of the Specific Relief Act, the petitioner could not be permitted to amend the plaint. Order II, Rule 2 of the Code provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The word "afterwards" in sub - rule (2) of Rule 2 of Order II signifies that if in first suit a plaintiff omits to sue in respect of, or intentionally relinquishes portion of his claim, he shall not sue in respect of the portion so omitted or relinquished in second suit. But without filing second suit, if he wants to include claim in the pending suit which he is otherwise entitled in connection with the dispute raised and in respect of the cause of action in the suit by bringing amendment, the consideration thereof would be under Order XI, Rule 17 of the code and not under Order II, Rule 2 of the Code.
7. In the case of Van Vibhag Karmchari Griha Nirman Sahakari Sanstha Maryadit (supra), the appellant therein had though filed the suit on the agreement for sale in his Page 7 of 12 HC-NIC Page 7 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT favour but did not pray for specific performance of the contract and then moved an application for amendment of the pleadings which was allowed. However, the trial court dismissed the suit by not accepting plea that the amendment for specific performance was not sought in view of the fact that there was no exemption under Section of the Urban Land Ceiling Act. It was in the context of the claim subsequently raised for specific performance of the contract on the same cause of action for which the suit was filed on the basis of the agreement to sale, the Hon'ble Court found in the facts of the case that inclusion of plea of specific performance by way of amendment would virtually alter the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different Court and a plea of specific performance being discretionary relief could not be granted to the appellant.
8. The Court finds that in the facts of the present case, the amendment prayed for under Order VI, Rule 17 of the Code cannot be denied just on the principles engrafted in Order II, Rule 2 of the Code. The amendment in the plaint is always liberally considered at any stage of the proceedings provided it does not change the character of the suit and may not amount to take away the accrued right of the opposite party. The objection raised in the context of Order II, Rule 2 of the Code could not be considered a right accrued to the respondents as it is in the pending suit and in the nature of the dispute raised and claim made in the suit , the application for amendment is being considered. The contention raised by learned advocate Mr.Vyas that in view of Section 34 of the Specific Relief Act also, the petitioner shall not be entitled to grant of amendment, cannot be accepted inasmuch as the provisions of section 34 could not be applied at the stage of consideration Page 8 of 12 HC-NIC Page 8 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT of the application for amendment under Order VI, Rule 17. When in pending suit, the plaintiff wants amendment to ask for further relief, if granted, it becomes part of the relief sought in the suit in connection with the dispute in the suit. In any case such objection is premature and is not available at the stage of consideration of application for amendment under Order VI, Rule 17 of the Code. When the Court finds that the amendment will not change the character of the suit, it could be allowed subject to objection of limitation. In the case of Sampath Kumar (supra) relied on by Mr. Kavina, Hon'ble Supreme Court has held and observed in paragraph nos.6 to 11 as under:
6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.
7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was one to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.
8. In Mst. Rukhmabai v. Lala Laxminarayan and Ors., AIR (1960) 335, this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit Page 9 of 12 HC-NIC Page 9 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.
9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-form and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observation in Siddalingamma and Anr. v. Mamtha Shenoy).
11. In the present case the amendment is being sought for almost 11 Years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title Page 10 of 12 HC-NIC Page 10 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in culcating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
9. In light of the above and for the reasons stated above, the Court finds that the learned Judge has failed to exercise jurisdiction vested with him by refusing to grant amendment prayed for in application at exhibit 42 and, therefore, the impugned order passed below exhibit at 42 in so far as the learned Judge has not allowed rest of the amendment as prayed for in application at exhibit 42 is required to be quashed and set aside.
10. In view of the above, the petition is allowed. The impugned order dated 10.04.2014 passed by the learned 9th Additional Senior Civil Judge below application at exhibit 42 in Special Civil Suit No.85 of 2007 is quashed and set aside, in so far as the learned Judge has not granted rest of the amendment prayed for in application at exhibit 42. The application at exhibit 42 thus stands allowed even for the rest of the amendment. Now, since the amendment in the plaint is allowed as per application Exh.42, the learned Judge shall Page 11 of 12 HC-NIC Page 11 of 12 Created On Sun Aug 13 11:24:38 IST 2017 C/SCA/6842/2014 JUDGMENT proceed with the suit after amendment is carried out in the plaint. Rule is made absolute.
Sd/-
(C.L.SONI, J.) vijay Page 12 of 12 HC-NIC Page 12 of 12 Created On Sun Aug 13 11:24:38 IST 2017