Gujarat High Court
Bharatkumar Vinaylal Shah vs Devendrakumar Vinaylal Shah on 3 January, 2024
NEUTRAL CITATION
C/SCA/21940/2023 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21940 of 2023
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BHARATKUMAR VINAYLAL SHAH
Versus
DEVENDRAKUMAR VINAYLAL SHAH
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Appearance:
JAIMIN A GANDHI(8065) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/01/2024
ORAL ORDER
1. Heard the learned advocate Mr. Jaimin A. Gandhi for the petitioner.
2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs.
"(A) The Honorable Court may be pleased to quash the order dated 05/08/2023 (Annx A) passed by the Honourable City Civil Court, Ahmedabad in Civil Suit No.1390 of 2022. (B) The Honorable Court may be pleased to hold that the petitioner was entitled to amend the injunction application and seek to restrain the defendant from withdrawing the dividend from the common shares of the parties.
(c) xxx..."Page 1 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024
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3. The brief facts of the case are as under.
Petitioner original plaintiff filed the Civil Suit No.1390 of 2022 before the learned City Civil Court, Ahmedabad, seeking partition, declaration and distribution of assets. The defendant appeared and filed Written Statement. Thereafter, plaintiff filed an application Exhibit-28 seeking amendment in the injunction application only. The application was resisted by the defendant and the learned trial Court dismissed the application on 05/08/2023.
4. Learned advocate for the petitioner has submitted that the plaintiff sought an amendment in the injunction application only. The amendment, which was sought for is as follows.
"16A. The plaintiff states that it is an undisputed fact that the shares held in the Demat account no. 14579550 and DP ID no. 301549 in HDFC Limited, Navrangpura, Ahmedabad is joint account of the plaintiff and defendant no. 1. The shares held in the said account are jointly owned by the plaintiff and defendant no. 1. However the Defendant no. 1 has been withdrawing the dividend received from those shares in the bank account on regular basis. Since the dividend is a joint property of the Plaintiff and Defendant No. 1, the Defendant No. 1 shall be restrained from withdrawing such dividend received in the bank Page 2 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024 NEUTRAL CITATION C/SCA/21940/2023 ORDER DATED: 03/01/2024 undefined account pertaining to the shares jointly held by the plaintiff and defendant No.1."
5. The further amendment was sought for in prayer clause of injunction application only, which reads as under.
"(d) The Honorable Court may restrain the defendant No.1 from withdrawing the dividend received from the shares jointly owned by the plaintiff and defendant No.1."
6. Learned advocate for the petitioner has referred para 3 (c) of the plaint, which reads as under.
"The plaintiff states that the distribution of the property between the parties is largely governed by the will of late Vinaylal Shah dated 14/01/1988. The following properties are the properties of Late Vinaylal Manekchand Shah and also the self-acquired properties of the plaintiff and the defendant and accordingly they shall be distributed."
"Equity shares of companies including Hindustan Unilever Limited, Exide, GNFC, Nocil, Standard Industries, Synthetic and Chemical Industries, Videocon Industries etc, held in Demat account no. 14579550 and DP Id No. 301549 in HDFC Bank Ltd, Navrangpura, Ahmedabad 380009. They are in the joint name of the Plaintiff and the Defendant. They are self-acquired property in the hands of late Vinaylal Shah, invested out of various earnings throughout his life. This Demat account is owned by the Plaintiff and the Defendant. However the Defendant has withdrawn the dividend and interest received in Page 3 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024 NEUTRAL CITATION C/SCA/21940/2023 ORDER DATED: 03/01/2024 undefined lieu of various share- holding in the said Demat account from 1988 till date without giving the Plaintiff his share. The withdrawals by the Defendant were without informing the Plaintiff and without seeking consent of the Plaintiff, clearly depicting the malafide of the Defendant. The Plaintiff has 50% share in such dividend and interest received in the said Demat account. The Plaintiff claims that at the time of wedding of Sarika, the daughter of the Defendant, the Defendant requested the Plaintiff for some financial assistance in 2001-02. Accordingly, it was mutually decided that 2000 equity shares of Hindustan Unilever Limited shall be provided to the Defendant from the joint equity shares holding of the parties. However, subsequently at the time of wedding of the daughters of the Plaintiff, namely Vaishali and Mannsi, the Plaintiff made a similar request to provide some financial assistance from the joint equity share holding. However the Defendant denied the request of the Plaintiff. The Plaintiff clarifies that the said 2000 share of Hindustan Unilever Limited are still part of the joint holding of both the parties. Accordingly the Plaintiff does not make a separate claim regarding those shares. However the purpose of this clarification is to indicate the conduct of the Defendant. The Plaintiff sought his share in this Demat account from the Defendant at the time of wedding of Vaishali and Mannasi, the daughters of the the Plaintiff. However the Defendant insulted the family members of the Plaintiff and turned down the request of the Plaintiff. Since the Plaintiff was suffering from liquidity crunch, he had to borrow money from the market and pay interest thereon. The Plaintiff believes that the market value of the shares is around Rs. 50,00,000/- (Rupees Page 4 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024 NEUTRAL CITATION C/SCA/21940/2023 ORDER DATED: 03/01/2024 undefined Fifty Lacs) and market value of the dividend and interest withdrawn by the Defendant to the best of the knowledge of the Plaintiff is around Rs. 10,00,000/- (Rupees Ten lacs), totaling to Rs. 60,00,000/- (Rupees Sixty Lacs). The Plaintiff clarifies that the Plaintiff is unable to ascertain the exact amount of interest and dividend received by the Defendant since the statement of accounts available with the Plaintiff is only upto 2020."
7. By referring the said para, the contentions of the learned advocate for the petitioner is that the necessary averments are already pleaded in the plaint, hence amendment was prayed for in injunction application. It is further submitted that the reliefs, which are proposed to be added in the injunction application does not require to be added in the plaint. The reliefs sought for in the injunction application are covered in the prayer clause of the plaint. It is further submitted under Section 151 of the Code of Civil Procedure, 1908, Court has inherent power to grant the application Exhibit-28.
8. Learned advocate for the petitioner has relied upon the provisions of Order 39 Rule 1 (a) and (c) of the Code of Civil Procedure, 1908 and whereby has pointed out that in case where the defendant is threatening to dispossess of properties and that Page 5 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024 NEUTRAL CITATION C/SCA/21940/2023 ORDER DATED: 03/01/2024 undefined the property is in danger of being waste or damage, plaintiff has right to ask for a temporary injunction. It is further submitted that the code does not restrict a party to amend the injunction application or an affidavit in support of injunction application and hence, under Section 151 of the Code of Civil Procedure, 1908 the learned trial Court has inherent power to grant the application Exhibit-28.
9. The narrow issue before this Court is that whether plaintiff can amend the injunction application only in absence of any amendment proposed to be incorporated in the plaint? It could be apposite to refer the provision of Order 6 Rule 1 of the Code of Civil Procedure, 1908 which contemplates the definition of "pleading". As per Rule 1 of Order 6 of the Code of Civil Procedure, 1908, pleading shall mean plaint or written statement. The definition of pleading is clear and unambiguous and does not cover any application or affidavit in support of the application. In the present case, the plaintiff is seeking to amend injunction application only and seeking to add a prayer a in injunction application. This is not permissible. The Court will Page 6 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024 NEUTRAL CITATION C/SCA/21940/2023 ORDER DATED: 03/01/2024 undefined decide the injunction application in consonance with the averment made in the plaint and the prayers made therein. The plaintiff cannot have any relief, which is not either pleaded in the plaint. Merely, by adding prayer in the injunction application, the plaintiff cannot claim that the reliefs, which are sought to be claimed in the injunction application are directly or indirectly covered in the prayers made in the plaint. It is settled principle of law that the Court cannot grant any relief in the injunction application of which there is no averment in the plaint. Similarly Court cannot grant any relief which is outside the scope of plaint.
10. In the impugned order, the learned trial Court has also observed that the averments which are to be incorporated in the injunction application are not found in the plaint. Even any indirect reference of the proposed contention are not found in the plaint. Had it been the case that the plaintiff sought amendment in the plaint as well as in the injunction application, the case would have been different and the Court would have weighed the application in that view of the matter. Page 7 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024
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11. However, in the present case, since the plaintiff is seeking amendment in the injunction application only, this Court is not inclined to interfere in the reasonings and findings arrived at by the learned trial Court. Learned trial Court has rightly rejected the amendment application below Exhibit-28.
12. Moreover, the scope of Article 227 is very limited unless and until, there is gross error of law, the High Court would interfere in the findings of the learned trial Court.
13. In the present case, there is no gross illegality committed by the learned trial Court in dismissing the application below Exhibit-28. In view of this fact, the petition lacks merits. Hence, it deserves to be dismissed. Accordingly, it is dismissed with no order as to costs.
(D. M. DESAI,J) Vikramsinh Amarsinh Page 8 of 8 Downloaded on : Mon Jan 08 20:34:27 IST 2024