Gujarat High Court
Bhavnaben Prakashbhai Patel vs Legal Heirs Of Deceased Jayshukhben D/O ... on 21 October, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9554 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 3937 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9316 of 2016
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9316 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
========================================================== BHAVNABEN PRAKASHBHAI PATEL Versus LEGAL HEIRS OF DECEASED JAYSHUKHBEN D/O THAKOREBHAI & 9 other(s) ========================================================== Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1 MR AB MUNSHI(1238) for the Respondent(s) No. 2,3,4.1,5,6,7,8 MR SP MAJMUDAR(3456) for the Respondent(s) No. 1.1,1.2,1.3,1.4 MS NIYATI B KATIRA(5095) for the Respondent(s) No. 1.1,1.2,1.3,1.4 NOTICE UNSERVED(8) for the Respondent(s) No. 10 UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 4,9 ========================================================== Page 1 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA Date : 21/10/2021 COMMON CAV JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. S.P. Majmudar waives service of notice of rule for and on behalf of respective respondents in Special Civil Application No.9554 of 2016 and Special Civil Application No.9316 of 2016. Learned advocate Mr. A.B. Munshi waives service of notice of rule for and on behalf of respective respondents in Special Civil Application No.9554 of 2016 and Special Civil Application No.3937 of 2013.
2. In the present three petitions, respective parties in the Special Civil Suit No.127 of 2009 have challenged the legality and validity of the order passed below Exh.8 as well as Exh.65 preferred under Order 6 Rule 17 of the Code of Civil Procedure wherein application Exh.8 was rejected by the court below vide order dated 16.02.2013 whereas Exh.65 was allowed by the Lower Court vide order dated 21.03.2016. Aggrieved parties have preferred three different petitions before this Court challenging the same order passed below Exh.8 and Exh.65. Original plaintiffs in Special Civil Suit No.127 of 2009 have preferred Special Civil Application No.3937 of 2013 Page 2 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 challenging the order passed below Exh.8 dated 16.02.2013 and respective defendants in Special Civil Suit No.127 of 2009 have challenged the order passed below Exh.65 dated 21.03.2016 by preferring two Special Civil Application Nos.9554 of 2016 and 9316 of 2016. On a joint request being made by learned advocates appearing for the respective parties to decide these three different petitions preferred by the respective parties against the order passed below Exh.8 and Exh.65 by the Trial Court in common Civil Suit No. 127 of 2009. Hence, these petitions are simultaneously decided by passing common order.
3. Short facts of the present case may be referred as under:
Special Civil Suit No. 127 of 2009 was filed by the plaintiffs, who are the petitioners in Special Civil Application No. 3937 of 2013 against the defendants/respondents seeking prayer of their share in the suit properties and sought partition, declaration and permanent injunction. As per the case of the plaintiff in the suit, that their family head and great grand father namely Manchharam Narsinbhai Patel had passed away on 15.05.1979, who had two sons namely Nagarbhai and Thakorebhai. Thakorebhai was also passed away in the year -1942 and he had three daughters namely Liliben, Page 3 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 Urmilaben and Jaysukhben. Jaysukhben also passed away in the year-2008 and original plaintiffs and defendant No.9 have undivided share in the suit property. The suit was filed by the plaintiffs on 27.03.2009. During the pendency of the suit, the plaintiffs filed one application for amendment under Order 6 Rule 17 of the Code of Civil Procedure, 1908 below Exh.8 on 11.07.2009. By virtue of the amendment application, plaintiff wanted to include certain properties in the schedule of the plaint and they have sought the said properties to be included by virtue of Schedule-B. It was the case of the plaintiff in the amendment application below Exh.8 that the said properties were also purchased by the defendant Nos.3 and 4 from the funds of HUF, in which the plaintiffs had share. Plaintiffs wanted to include the properties on the ground that the said properties were also deemed to be ancestral properties and plaintiffs are entitled to share therein. The learned Trial Court, after hearing the respective parties, was pleased to reject the application below Exh.8 vide order dated 16.02.2013 on the ground that plaintiffs have not been able to prove that the said properties were ancestral properties. Thereafter, plaintiffs moved another application for amendment below Exh.65 on 25.03.2016 with a prayer to add certain other properties, which Page 4 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 were not part of the earlier amendment application Exh.8. In the application Exh.65, the plaintiffs contended that the said properties have also been purchased from joint family funds and by selling the properties, in which the plaintiffs had share and thus, they are entitled to their share in the said ancestral properties mentioned in the application Exh.65. After hearing the parties, the learned Judge of the Trial Court vide order dated 21.03.2016 allowed the said amendment application below Exh.65 wherein the plaintiffs wanted to join Bhavnaben Prakashbhai Patel as a party because it was a case of the plaintiffs that the said properties were purchased in her name and the plaintiffs have share in the said properties. Against the order passed below Exh.65, two Special Civil Application No.9554 of 2016 and 9316 of 2016 have been preferred by the respective defendants before this Court and Special Civil Application No.3937 of 2013 has been preferred by the original plaintiffs being aggrieved with the order passed below Exh.8 dated 16.02.2013.
4. Heard learned advocates appearing for the petitioner as well as learned advocate appearing for the respondents.
5. Learned advocate appearing for the petitioner in Special Civil Application No.3937 of 2013 has submitted in his arguments that the Page 5 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 order passed below Exh.8 dated 16.02.2013, rejecting the application for amendment is completely illegal and erroneous. It is further submitted that as per the settled legal position, amendment of plaint is required to be liberally construed and in present case, amendment prayed by the plaintiffs in their application Exh.8 was required to be decided the real controversy between the parties. That learned Trial Court rejected the application Exh.8 only on the ground that plaintiffs have not been able to prove that said properties are the ancestral properties. It is further submitted that at the stage of granting amendment application, court is not required to go into the merits of the case. In the present case trial court by going into the merits of the case has committed jurisdictional error while passing the impugned order. It is further argued by learned advocate for the petitioner that amendments sought by the petitioners are not going to change the nature of the suit in any manner, but in fact it is necessary to decide the partition suit, which must include all the properties on which the plaintiffs are claiming their share. It is further submitted that in the partition suit, even after passing the decree, Court has power to allow the amendment application to include the properties before final decree is passed. It is further submitted that not granting Page 6 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 amendment as prayed by the plaintiffs in their application Exh.8 would mean that suit is not being decided in accordance with law. 5.1 While coming to Special Civil Application No.9554 of 2016 and 9316 of 2016, learned advocate appearing from the respondents has submitted that the trial Court has rightly granted the amendment application Exh.65 and no error of law has been committed while passing the impugned order. It was further argued by learned advocate that only objection was raised against the said application Exh.65 by the petitioner, that said properties are not ancestral properties and amendment would hit by Order 2 Rule 2 of the Code of Civil Procedure, 1908. That the trial Court has rightly observed while passing the order below Exh.65 that whether the properties are the ancestral properties or not, it can not be decided at the stage of granting amendment. It is further submitted that provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908 would not be applicable to the facts of the present case, because in the present case suit is still pending. It is further submitted that Order 2 Rule 2 of the C.P.C. would apply to the subsequent suit only. It is further submitted by learned advocate that in case Court has granted the amendment prayed in their application Exh.65 then it would not Page 7 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 change the nature of the suit as certain properties were left out in the plaint and they can always be added at subsequent stage to decide the real controversy between the parties. That by allowing the application Exh.65 no prejudice would be caused to the original defendants. That defendants wanted to prolong the proceedings unnecessarily by raising frivolous objections to the grant of amendment and the suit is delayed at their instance. It is further submitted that amendment application below Exh.8 was not rejected by the court below on the ground that it was barred by limitation, and therefore, contention of the respondents at this stage that the amendment application was barred by limitation cannot be entertained. That in fact amendment prayed by the plaintiff in both of the application Exh.8 and Exh.65 was not barred by limitation at all. It is further submitted that reliefs prayed by the plaintiff was within the period applicable for filing partition suit. It is further submitted that application below Exh.65 was filed immediately after the issues were framed and at the stage, when the evidence was not started. It is further submitted that as the recording of evidence has not been started in the suit, amendment cannot be refused under the provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908. Page 8 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 That application Exh.65 was filed and parties were yet to lead their evidence, and therefore, also said amendment was rightly allowed by the Court. It is further submitted by learned advocate that all the issues, including limitation can always be kept open, which can be decided at the time of deciding the suit and such issues were not required to be gone into while deciding the amendment application. It is further submitted that Bhavnaben Prakashbhai Patel was permitted to be joined as a party defendant No.10, as per the prayer made in the amendment application below Exh.65, who is a family member of the petitioners. That plaintiffs have dominus litis and entitled to join parties in the suit who are necessary and proper parties. That defendant No.10 i.e. Bhavnaben Prakasbhia Patel was necessary and proper party as she is holding the property which have been purchased by the defendants of the joint family properties and she is also wife of the one of the family members of the plaintiffs, and therefore, court below has rightly permitted to join defendant No.10 as one of the defendants in the suit. In support of his argument learned advocate has placed reliance upon the following judgments:
1. 1980 (5) SCC 537 (Para Nos.10-13) (2) 2001 (2) SCC 472 (Para Nos.52-54), (3) 2006 (4) SCC 385 (Para Nos.31-45), (4) 2009 (2) Page 9 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 SCC 562 (Para Nos.17-21), (5) 2009 (3) GLR 2565 = 2009 SCC OnLine (Guj.) 7435 (Para Nos.24-30);, (6) 2014 (13) SCC 40 (Para Nos.17-21), (7) 2018 (2) SCC 87 (Para Nos.18-23), (8) 2018 (2) SCC 132, (9) 2018 (6) SCC 567 (Para Nos.6-17), and (10) 2018 (9) SCC 164.
5.2 It is further submitted by learned advocate for the petitioner that amendment sought by the plaintiff was a bona fide only because to bring certain properties, which was left out in the plaint. It is further submitted that refusing to allow the amendment would in fact leading to injustice and multiplicity of proceedings. Hence, it is submitted by learned advocate appearing for petitioner/respondent to allow Special Civil Application No.3937 of 2013 and dismiss Special Civil Application No.9554 of 2016 and Special Civil Application No.9316 of 2016.
6. Learned Senior Advocate appearing from the respondents in Special Civil Application No.3937 of 2013 and petitioners in Special Civil Application No.9316 of 2016 and Special Civil Application No.9554 of 2016 has vehemently opposed the submissions made by learned advocate appearing from the opposite side and submitted that along with Special Civil Suit No.127 of 2009, plaintiff also filed Page 10 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 an application for injunction below Exh.5 which came to be rejected by Civil Court, Surat vide order datd 26.04.2013. It is further submitted that during the pendency of the application for interim relief Exh.5 preferred by the plaintiff, they moved an application Exh.8 before the trial Court under Order 6 Rule 17 of Code of Civil Procedure, 1908 seeking amendment that the original defendant Nos.3 and 4 had purchased agricultural land at village Veluk, Sarol and Narthana, Taluka-Olpad on 11.07.2009, That the said application Exh.8 was rejected by the trial Court vide order dated 16.02.2013. That the original plaintiff while preferring Special Civil Application No.3937 of 2013 before this Court, notice was issued on 21.10.2013 and by way of interim relief, this Court directed to stay the implementation, execution and operation of the order passed below Exh.8 on 21.10.2013. It is further submitted that being dissatisfied with the order passed below Exh.5 rejecting application for interim injunction of the plaintiffs, they moved an Appeal from Order No. 451 of 2013 on 28.02.2016 before this Court. It is further submitted by learned Senior Advocate that the said Appeal from Order was withdrawn by the appellants/original plaintiffs and alternatively prayed to expedite the hearing of this suit. That this Page 11 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 Court was pleased to pass an order on 25.02.2016 directing trial court to expedite the hearing of the suit i.e. S.C.S. No.127 of 2009 preferably within a period of one year. It is further submitted that in order to frustrate the effect of the order passed below Exh.8 dated 16.02.2013, plaintiffs again preferred an application Exh.65 seeking amendment of Smt. Bhavnaben Prakashbhai Patel alongwith others as defendant in the suit and tried to incorporate the self acquired properties of defendant No.4 namely Prakashbhai Yogeshbhai Patel as suit property in the schedule of the plaint. It is further submitted that erroneously, Trial Court vide order dated 21.05.2016 partly allowed the application Exh.65 permitting to implead Bhavnaben as party defendant No.10 and so far as prayer of proposed defendant Nos.11 to 14 was rejected and also permitted to add the land of village Kacholi in the schedule of the plaint. That being dissatisfied with the impugned order passed below Exh.65, two petitions came to be preferred being Special Civil Application No.9316 of 2016 by defendant No.1 to 7 and so far operative part of the prayer with respect to paragraph Nos.3 and 4 of the order passed below Exh.65 dated 21.05.2016, Special Civil Application No.9554 of 2016 was filed by Bhavnaben Prakashbhai Patel inter alia challenging that part Page 12 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 of the order whereby Bhavnaben was not concerned, she was wrongly impleaded in the suit. It is further submitted that Special Civil Application No.9316 of 2016 and Special Civil Application No.3937 of 2013 came up for hearing before this Court on 31.01.2017 and this Court for the first time passed an order in Special Civil Application No.3937 of 2013 stayed the further proceeding of the civil suit. It was further submitted that it was the duty of the petitioners of Special Civil Application No.3937 of 2013 to inform the Court about the expeditious hearing of the suit, as order was passed in Appeal from Order while passing the order dated 31.01.2017 in Special Civil Application No.3937 of 2013. It is further submitted by learned Senior Advocate that there are two conflicting orders passed by learned Trial Court. Once application Exh.8 moved in the year- 2013 for amendment was rejected and again in the year-2016, an amendment application to include another property was allowed by the learned Trial Court by passing an order below Exh.65. It is further submitted that as they are conflict with each other, Special Civil Application No.3937 of 2013 is required to be dismissed and Special Civil Application No.9316 of 2016 and Special Civil Application No.9554 of 2016 are required to be Page 13 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 allowed. It is further submitted that while allowing an application Exh.65, trial court has committed serious error. Under the principles of Order 2 Rule 2 of the Code of Civil Procedure, 1908 by way of incorporation of the suit property to amend the plaint was absolutely barred, and therefore, Special Civil Application No.9316 of 2016 is required to be allowed and Special Civil Application No.3937 of 2013 is required to be dismissed. It is further submitted that from the pedigree annexed by the respondents goes to show that the parties are related to each other and or family members. It is difficult to believe that original plaintiffs were not aware about said properties. It is further submitted that they are conscious that the lands, which are sought to be included by way of application Exh.8 and Exh.65, are not ancestral property, and therefore, plaintiffs were stopped from seeking to incorporate the said land as suit property. It is further submitted that so far as the properties of an application Exh.8, property of village Veluk is sold way back in the year-2005, and therefore, defendant No.4 ceased to be an owner of the said property, and therefore, also said property cannot be included in the schedule of the plaint. It is further submitted by learned Senior Advocate for the respondents that so far as property at Village Sarol Page 14 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 is concerned, it was purchased by Bhavnaben wife of Prakashbhai Patel and since she was not a party to the said proceedings, that property cannot be included in the schedule to the plaint. It is further submitted that so far as the property of Village-Narthana, defendant No.4 had purchased the same way back in the year -1998, and therefore, said property cannot form part of schedule of the plaint. It is further submitted by learned Senior Advocate appearing for the respondents that rejection of the application Exh.8 was a perfect order, and therefore, Special Civil Application No.3937 of 2013 is required to be rejected and consequently Special Civil Application No.9316 of 2016 whereby including the land of village Kacholi is uncalled, and therefore, Special Civil Application No.9316 of 2016 is required to be allowed. It is further submitted by learned advocate appearing for the respondents that properties sought to be included in the plaint by the original plaintiffs cannot be said to be ancestral properties as the same were purchased even before filing of the suit. The partition of the properties had occurred prior to filing of the suit and therefore, no equitable relief can be granted to the petitioners while adding the same in the schedule of the plaint. Learned advocate for the respondents has distinguished the judgments relied Page 15 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 upon by the plaintiffs and tried to convince the Court that they are not applicable to the present case considering the facts and circumstances of the present case. In support of his arguments, learned advocate appearing for the respondents has relied upon the judgments reported in 1980 (2) SCC 329, 1996 (1) SCC 90 and 2009 (10) SCC 84 as well as judgment of this Court passed in Special Civil Application No.12040 of 2014 dated 31.03.2015 arguing that the said judgment is squarely applicable to the facts of the present case. Ultimately it was requested by learned advocate appearing for the respondents to dismiss Special Civil Application No.3937 of 2013 and allow Special Civil Application No.9316 of 2016 and Special Civil Application No.9554 of 2016 as prayed by them.
7. Having heard learned advocates appearing for the respective parties as well as averments made in the Special Civil Suit No.127 of 2019 filed by the plaintiff, averments made in the application below Exh.8 as well as Exh.65 preferred by the original plaintiffs under Order 6 Rule 17 of the Code of Civil Procedure, 1908, objections filed by the respective respondents against the application and impugned orders dated 16.02.2013 as well as 25.03.2016 and rival Page 16 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 contentions, first of all this court would like to refer the judgment delivered in the case of S. Satnam Singh and Others v. Surender Kaur and Another reported in 2009 (2) SCC 562, wherein Hon'ble Apex Court has observed in Paragraph No.17 as under:
"Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto."
8. The Hon'ble Supreme Court in case of C.M.Vareekutty versus C.M. Mathukutty reported in 1980 1 SCC 537, it was a partion suit of the property wherein defendant denied to file a written statement and contended that there was nothing further to be done in the suit except to pass a preliminary decree for partition in terms of Exh. A-
10. The plaintiff, however, filed an application for amendment of the plaint by substituting and new schedule of properties. In these new schedule correct and fuller particulars were given of the properties previously mentioned in the original plaint. The plaint was opposed Page 17 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 by the defendant. The learned sub-ordinate Judge allowed the amendment but High Court of Kerala allowed the revision petition filed by the defendant and dismiss the application for amending the plaint. The Hon'ble Supreme Court held as under:
"Before the High Court it was agreed that the application under Section 34 of the Arbitration Act should not be persued by the defendant, that the plaintiff should give up his contest regarding the genuineness of Exhibit A- 10 and that the plaintiff was at liberty to raise the question of the validity of Exhibit A-10 which was to be made an issue in the suit itself. The order of stay granted by the Trial Court was, therefore, set aside and the suit was directed to be disposed of with the maximum expedition 'at any rate up to the point of the preliminary decree'. It was reiterated in the order of the High Court that the question of genuineness of Exhibit A-10 was not to be made an issue in the suit. The suit was to be tried on that footing. Thereafter the suit was taken up by the learned Subordinate Judge. The defendant declined to file a written statement and contended that there was nothing further to be done in the suit except to pass a preliminary decree for partition in terms of Exhibit A-10. The plaintiff however, filed an application for amendment of the plaint by substituting a new schedule of properties. In this new schedule fuller and correct particulars were given of the properties previously mentioned in the original plaint, A few new items were also included."
9. The Hon'ble Supreme Court in the case of Gurbakhsh Singh and others versus Buta Singh and another reported in (2018) 6 SCC Page 567, appellant requested for setting aside the ex parte Page 18 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 decree passed against the predecessor interest in Civil Suit No.195 of 1968. Record of suit in which ex parte decree was passed was not traceable in a record room. The Hon'ble Apex Court in Paragraph No.5 and 6 has observed as under:
"5. In the present case the record of Civil Suit No.195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the defendants.
6. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. Vs. Mohd Ruldu and Ors.1, had observed: "
"11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the Page 19 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J.Samuel & Others v. Gattu Mahesh and Others and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd and Others. 3 Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."
10. The Hon'ble Apex Court in the case of Raj Kumar Bhatia versus Subhash Chander Bhatia reported in 2018 (2) Supreme Court Cases 87, a suit for recovery of possession, arrears of damage and mense profits was filed against the appellant on 11.10.2010. The property in dispute was situated on the first floor at 1/6 Ramesh Nagar, New Delhi. As per the case of the plaintiff that Deshraj Bhatia acquired the lease hold rights on 13.02.1962. After his death, his children are stated to have relinquished their rights and interest in favour of the mother, Lajwanti Bhatia, she executed a will bequathing the property to her son Ratan Lal Bhatia who stated to Page 20 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 have become the exclusive owner of the property on her death. The original plaintiff, Sharda Raj Bhatia was the widow of Ratanlal Bhatia. The appellant was the son of Ratanlal Bhatia, who died in contested. Written statement was also filed in the suit on 22.02.2003 by the appellant and according to him, respondent had exercised undue influence in obtaining the deed of relinquishment and party shall live together jointly even after the alleged relinquished made. The appellant claimed that an oral understanding was arrived at by which he was to occupy the first and second floor together with terrace whereas the respondent was occupied the ground floor exclusively and their mother was to live on the ground floor and or with any of her sons, as she desires. The appellant filed a written statement to amend the plaint which was opposed by the respondent. The trial court allowed an application by an order dated 11.04.2016. The Hon'ble Apex Court considering the peculiar facts of the case before it observed in Paragraph No.12 as under :
"This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is Page 21 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227 In Sadhna Lodh v National Insurance Company3, this Court has held that the (2003) 3 SCC 524 supervisory jurisdiction conferred on the High Court under Article 227is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff."
11. In the case of Mansukhlat Bachubhai Parmar versus State of Gujarat and another cited in (2009) 50 (3) GLR Page 2565, this Court has observed in Paragraph No.20 as under:
"The amendment sought to be incorporated in the plaint is a factual one, necessitated by the termination of the services of the petitioner, during the pendency of the Suit. It cannot, therefore, be said that the amendment sought for is not nature of Page 22 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 the Suit. The provisions of Order VI, Rule 17 empower the Court to permit amendment of pleadings, at any stage of the proceedings. The question of delay, therefore, is not relevant. While granting or refusing an amendment or alteration of the pleadings, the factual position has to be kept in mind. In the peculiar facts of the present case, the amendment prayed for the by the petitioner is necessary to determine the real question in controversy between the parties, and can be permitted at any stage of the proceedings as the proviso to Order VI, Rule 17 is not applicable in this case. Ultimately, the cause of substantial justice within the bounds of law, should be advanced and by a hyper technical approach not resorted to, in a case of this nature."
12. The Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and others versus K.K. Modi and Others reported in 2006 4 SCC page 385, the Hon'ble Supreme Court held as under:
"The object of Order 6 Rule 17 is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of Page 23 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 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.
19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."
13. The Hon'ble Apex Court in the case of Pankaja and another versus Yellapa (dead) by Lrs. And others reported in (2004) 6 SCC Page 415, Hon'ble Apex Court has held as under:
"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
16. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Page 24 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. 2004 (3) SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice.
12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the court to allow applications in spite of the delay and latches in moving such amendment application.
13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments."
14. The Hon'ble Apex Court in the case of Ragu Thilak D. John versus S. Rayappan and others reported in (2001) 2 SCC 472, the Hon'ble Apex Court has observed as under:
"If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of Page 25 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 averments made in paras 8(a) to 8(f) of the plant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for. "
15. The Hon'ble Apex Court in the case of P.K. Narayanan Raja versus Ambika and another reported in (2018) 9 SCC Page 164, plaintiffs and defendants were family members. Plaintiffs filed a suit for declaration and injunction in respect of some of the family properties, however, by way of same parties involving all family properties including (properties part of an injunction suit) still pending before the Trial Court. The Hon'ble Apex Court held as under:
"Properties involved in this appeal should be part of partition suit along with other properties-Respective rights and claims of parties should be subject-matter of single suit rather than two different suits- Therefore, parties granted liberty to amend pleadings in partition suit in respect of properties involved in injunction suit so that trial court can decide rights of parties- All judgments and decrees passed suit for injunction set aside- Trial Court directed to frame additional issues, if required and to permit parties to lead evidence in respect of amended pleadings- Time-limit of one year fixed for disposal of partition suit between parties."
16. In the case of Ram Sahai versus Ramanad and others reported in (2004) 13 SCC 40, in a similar facts of the case, Hon'ble Page 26 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 Apex Court as observed as under:
"The question whether the properties sought to be added are the personal properties of the defendant and other third parties and thus are not liable to be partitioned is not relevant for considering application for amendment. We are also unable to sustain the view of the High Court that the scope of the litigation will stand enlarged by addition of more properties. Adding more properties would not result in changing the nature and character of the suit. The effect of those properties standing in the name of the defendant and other third parties would, of course, be examined on merit in accordance with law by the trial court and on the facts of the case when the suit is at the initial stage it cannot be made a ground to reject the application for amendment, also bearing in veiw the settled position that liberal approach is required to be adopted in considering prayers of amendment of pleadings. We, of course, express no opinion on the merits of the claim of the respective parties."
17. Considering the settled legal position as observed above, now we may come to factual aspect as the Special Civil Suit No.127 of 2009 was filed by the original plaintiff against the defendants for declaration that the plaintiffs as the legal heirs of the Thakorebhai Manchharam and have one half share in the suit property. During the pendency of this Suit, they moved an application for amendment of the plaint Exh.8 dated 16.02.2013 under Order 6 Rule 17 of the Code of Civil Procedure, 1908, which was rejected. Real question in controversy between the parties is partition of the ancestral property Page 27 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 and it was the contention of the original plaintiffs that certain properties were acquired by the original respondents from the income generated from the ancestral properties. Such an amendment sought by the plaintiff in their application Exh.8 would not prejudice the rights of the original defendants or would change the basic nature of the Special Civil Suit No.127 of 2009. It appears that before passing the order below Exh.8, trial Court had not adduced any evidence. It was specifically denied that the properties in question were self acquired properties. As per the contention of the plaintiffs that properties have been acquired from the income generated from the ancestral property and hence they are entitled to a share. Court cannot go into the merits of the case or observe in application for amendment that property in question sought to be amended by the plaintiff was a self acquired property of the defendants or plaintiff failed to prove that it was an ancestral properties.
18. In a subsequent application Exh.65 for amendment to add other certain properties in the schedule of the plaint and implead Smt. Bhavnaben Prakashbhai Patel as defendant No.10, prayer was allowed by the Court. Every person, who was any form of right or interest in the property which is a suit property, is required to be Page 28 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 added as a party to the suit. Smt. Bhavnaben Patel was mutated in the record of the property situated at Jahangirabad, Block No.20/1 and 20/2 (suit properties) and she had accepted that her name was mutated in the revenue record. There is no illegality committed by the trial court in impleading Bhavnaben Patel as a defendant No.10 while allowing the application Exh.65. Under Order 6 Rule 17 of Code of Civil Procedure, 1908, court has power to allow either parties to amend their pleadings if such amendment does not prejudice the right of the other part and also if such an amendment does not change the basic nature of the controversy between the parties. In an application Exh.8 preferred by the original plaintiff for amendment of the plaint was for the addition of two properties namely (1) Taluka-Olpad, Village-Veluk, Survey No.191/2, 191/3, 191/4 and Block No.279 and (2) Taluka-Olpad, Village- Sarol, Survey Nos.25, 26, 27 and 28 and Block Nos.104 (3) Taluka-Olpad, Village- Narthana Survey Nos.321/1, 318/1 and Block No. 335.
19. Another application moved by the plaintiffs at Exh.65 was for impleadment of the parties namely Bhavnaben Patel as one of the defendants alongwith three other people and adding the following properties as suit properties i.e. Properties No. (1) Taluka-Gandevi, Page 29 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 Village-Kacholi, Block Nos.759/Paiki-2 and 759/Paiki-3 (2) Taluka
-Gandevi, Village-Dhanori, Block No.396. From the contents of the application Exh. 8 and Exh.65 preferred by the original plaintiffs in the suit they prayed for amendment of the plaint. For addition of different properties as suit properties and later was also upon impleadment of parties.
20. Application to amend the plaint cannot be said to be barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908. Original suit was filed by plaintiffs for the partition of the ancestral property, and therefore, it was necessary to include all the concerned properties in the suit. The properties in addition to the suit were requested to be added as suit properties during the pendency of this suit, and therefore, principle of Order 2 Rule 2 of Code of Civil Procedure, 1908 would not be applicable. Effect of the Order 2 Rule 2 of the Code of Civil Procedure, is to bar a plaintiff who had earlier claimed certain remedies with regard to cause of action from filing a second suit with regard to other reliefs based on said cause of action. The trial court has rightly allowed the application Exh.65 as nature of the suit would never change. The property is an ancestral property or a self acquired property can be decided during the course of the trial Page 30 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 after leading evidence by the parties. At the stage of deciding the application under Order 6 Rule 17 of the Civil Procedure Code, 1908, it is not necessary to decide the nature of the properties or rights of the parties. In an order dated 21.05.2016, while deciding the application Exh.65, trial Court has observed that there is no secondary source of income for the defendant No.4 apart from income from agriculture, which is not warranted.
21. It appears that after withdrawal of Appeal from Order by the plaintiff from this Court, however time was fixed by the Court (Hon'ble Mr. Justice R.D. Kothari) in Appeal from Order No.451 of 2013 to dispose of the suit expeditiously and preferably by 31.12.2016, time limit for deciding the suit was extended from time to time.
22. From the record, this Court is of the view that if the certain properties are left out in the plaint, they can always be added at subsequent stage to decide the real controversy between the parties. The rights of the defendants to give reply or filing written statement as well as to lead their evidence to the amendment would always be open in the suit. There would be no prejudice to the defendants, if such amendment as prayed for by the plaintiff would be accepted. Page 31 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 The question of limitation as observed by the trial court while deciding an application for amendment below Exh.8 cannot be entertained.
23. Indisputably in the suit, evidence was not started to be recorded and before that, these two applications were submitted by the plaintiffs. Issue including limitation would always be opened which can be decided at the time of deciding the suit, considering the facts of the present case.
24. In a case cited in 1980 2 SCC Page 329 relied upon by the learned advocate for the original defendants wherein suit on enforce rights of pre-emption decree by trial court was filed. Appellate Court allowed the amendment application of vendee to amend the written statement seeking to raise plea of limitation. Plaintiff gave an application to amend plaint raising pleas of specific performance of agreement to sell. Amendment sought by the plaintiff, was declined by High Court and dismissed the suit on the ground of limitation. Hon'ble Supreme Court held that plaintiffs sought amendment to get out of bar of limitation, High court was justified in not allowing plaintiffs amendment and dismissing the suit. Peculiar facts was sought in the cited judgment wherein a compromise decree in a suit Page 32 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 for partition (to which the appellant and respondent No.1 were parties) conferred a right of pre emption on all the parties thereto inasmuch as after allotting the different properties to them a provision was made in the decree to the effect that if the plaintiffs or the defendants wanted to sell the properties allotted to them, they should sell the same amount themselves mutually.
25. The plaintiff had proceeded to claim damages from the respondent after the said date meaning thereby after 25.09.1962 and there was enough material for the High Court to come to conclusion that possession of the property had been delivered by the first respondent to the second respondent immediately after the document had been executed with the result that under Article 10 of the first schedule to the Limitation Act, 1908, the suit was barred. The facts of the cited case would not be applicable, considering the facts of the present case.
26. In a case cited in 1996 (1) SCC Page 90, as per the facts, truck owner filed a suit for declaration that he is entitled to loss of truck, but did not claim relief being a consequential relief of payment of quantified amount. Application for amendment of plaint was filed by the plaintiff to add the relief. The Supreme Court held that relief Page 33 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 cannot be added as if had become time barred at that stage and amendment of application was rejected. There cannot be any dispute of giving the application for amendment holding time barred, considering the facts of the present case.
27. In an order passed in Special Civil Application No.12040 of 2014 by this Court, in terms of Rule 2 Order 2 of Civil Procedure Code, observed that plaintiffs are deemed to have relinquished, their part of the claim, and therefore, barred from instituting a fresh suit in respect of the additional claim in contravention of the provisions of Order 2 Rule of Code and consequently the amendment is also barred by provisions of Rule 2 of Order 2 of the Code as well as by Limitation.
28. The Object of Rule 17 of C.P.C. is that, Court should try to merits of the case that come before it and should consequently allow amendments that may be necessary for determining the real question in controversy between the parties provided it does not go in justice or prejudice to the other side. Order 6 Rule 17 consists of two parts, whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading, the second party is imperative (shall) and enjoins the Court to allow all amendments which are Page 34 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 necessary for the purpose of determining the real question in controversy between the parties. In view of this, since the cause of action arose during the pendecny of this suit, proposed amendment made in the application Exh.8 by the plaintiffs, was required to be granted because the basic structure of the suit has not changed and there was merely change in the nature of relief claimed. If it is permissible for the plaintiffs to file an independent fresh suit, why the same relief, which could be prayed for in the new suit, cannot be permitted to be incorporated in the pending suit.
29. The real controversy test is the basic cordinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed, if it is not, the amendment will be refused, on the contrary, the trial court, without deciding whether a such an amendment is necessary, have expressed certain opinions and entered into a discussion on merits of the amendment application Exh.8. In cases like this, the Court should also take notice of subsequent events order to in shorten the litigation to preserve and safeguards the rights of both the parties and subserve the ends of justice. It is settled by a catena of decisions of the Page 35 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 Hon'ble Apex Court as well as this Court that rule of amendment is essentially a rule of justice, equity and would conscious and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
30. This Court has already noticed the prayer in the plaint and the application for amendment Application Exh.8 and Exh.65. In view of the discussion as above, this Court is of the opinion that amendment sought by the plaintiff was necessary for the purpose of determining the real controversy between the parties. A reading of the entire plaint and the prayer made thereunder and the proposed amendment would go to show that there was no question of any inconsistency with the case originally made out in the plaint.
31. The amendments sought for by the plaintiffs have become necessary in view of the facts that the plaintiffs have claimed their share of the suit property, which was said to be ancestral property. Since the trial court has entered discussion into a correctness or falsity of the case on merits in the amendment application Exh.8, which was not warranted. This Court has no other option but to interfere with the order passed by the trial Court below Exh.8 dated 16.02.2013. As there is no illegality committed by the Trial Court by Page 36 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 partly allowing the application Exh.65 vide order dated 21.05.2016, this may be confirmed.
32. Hence Special Civil Application No.3937 of 2013 is hereby allowed, the prayer made in the application Exh.8 in Special Civil Suit No.127 of 2009 shall be allowed. Interim relief, stands vacated forthwith. Rule is made absolute in Special Civil Application No.3937 of 2013.
33. Special Civil Application No.9316 of 2016 and Special Civil Application No.9554 of 2016 shall be dismissed. Order dated 21.05.2016 passed below Exh.65 in Special Civil Suit No.127 of 2009 shall be confirmed. Rule is discharged in Special Civil Application No.9316 of 2016 and Special Civil Application No.9554 of 2016.
34. It is made clear that this Court has not expressed any opinion on the merits of the rival claims in amended plaint, written statement and the issues, which are framed or likely to be framed. It is for both parties to contest the suit on merits on the basis of the amended plaint, written statement (SIC) and the issues now to be framed.
35. Considering the pendency of Special Civil Suit No.127 of 2009 since 11 years and more, learned Trial Judge will expedite the Page 37 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022 C/SCA/9554/2016 CAV JUDGMENT DATED: 21/10/2021 hearing of Special Civil Suit No.127 of 2009 and dispose of the same on merits preferably within a period of 10 months from the date of receipt of this order.
36. The parties shall cooperate in the proceedings of Special Civil Suit No.127 of 2009. Meanwhile, if any, application is submitted from either side, same shall be disposed of expeditiously.
(B.N. KARIA, J) ORDER IN CIVIL APPLICATION No.1 OF 2018 in SPECIAL CIVIL APPLICATION NO. 9316 of 2016 In view of the order passed in Special Civil Application No.9316 of 2016, present civil application does not survive and accordingly disposed of.
(B.N. KARIA, J) SUYASH Page 38 of 38 Downloaded on : Mon Jan 17 01:23:40 IST 2022