Gujarat High Court
M/S. Pradip And Dilip Co vs M/S. Rusabh Trading Co on 26 June, 2025
NEUTRAL CITATION
C/SCA/694/2024 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 694 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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M/S. PRADIP AND DILIP CO.
Versus
M/S. RUSABH TRADING CO. & ORS.
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Appearance:
MR PERCY KAVINA, SR. ADVOCATE WITH
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
MR BRIJ V SHETH(10594) for the Respondent(s) No. 4
NOTICE ISSUED BY PUBLICATION for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 26/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Brij V. Sheth waive service of rule for respondent No.4.
2. Respondents No. 1 to 3 have been served through paper publication as per order dated 22.11.2024 passed by this Court in Civil Application No.1 of 2024 filed in the main matter who chosen not to appear and contested writ application. As such presence of respondents No.1 to 3 are Page 1 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined otherwise not required for adjudicating the issue germane in the present matter as main contesting respondent is respondent No.4, who is duly represented by learned advocate Mr. Brij Sheth.
3. Heard learned senior advocate Mr. Percy Kavina with learned advocate Mr. H. J. Karathiya for the petitioner and learned advocate Mr. Brij V. Sheth for respondent No.4.
4. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari nature of a writ or any other appropriate writ, order or directions quashing and setting aside impugned order dated 09.10.2023 passed by the learned 22nd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Rajkot below Exh.11 in Special Civil Suit No.101 of 2022 and further be pleased the allow an application for amendment submitted by the petitioner herein;
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may stay further proceedings of Special Civil Suit No.101 of of 2022 pending before 22nd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Rajkot;
(C) Pass such other any orders that may be and/or thought further just and proper, in the facts and circumstances of the present case."
5. The parties will be referred as far as possible as per their original position in the suit. The petitioner herein is original plaintiff, whereas respondents No.1 to 3 are original Page 2 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined defendants No. 1 to 3, happen to be original owner of the suit property and respondent No.4 is now defendant No.4 being subsequent purchaser of the suit property by way of registered sale-deed from original owners.
Short Facts of the case
6. The plaintiff has entered into an agreement for sell with defendants No. 1 to 3 dated 12.01.2022 in relation to the suit property, for which he sought for specific performance of such agreement to sell. The suit is filed seeking specific performance, declaration and permanent injunction in relation to suit property which appears to have been filed on 06.12.2022.
6.1 The defendants No. 1 to 3 appear to have executed registered sale-deed in favour of defendant No.4 on 06.03.2023. So, at the instance of plaintiff, by way of an application filed below Exh. 10 under Order 1 rule 10 of CPC seek prayer to join subsequent purchaser i.e. defendant no.4 as well as another application filed under Order 6 rule 17 of CPC. below Exh. 11 challenging such registered sale-deed executed by defendants No. 1 to 3 in favour of defendant No.4 on 06.03.2023.
Page 3 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined 6.2 After hearing the parties, the trial Court vide its common order dated 09.10.2023 allowed an application filed below Exh.10 thereby joined subsequent purchaser i.e. defendant No.4 in the suit but rejected the application filed below Exh. 11 seeking amendment in the plaint which is impugned in the present writ application.
6.3 It is reported to this Court that defendant No.4 had challenged the aforesaid order, so far as granting application filed below Exh.10 in the suit but this Court has rejected his writ application, thereby, order of joining subsequent purchaser i.e. defendant No.4 become final. Thus, defendant No.4 being subsequent purchaser of suit property holding title of it joined in the suit.
6.4 Nonetheless, the plaintiff is aggrieved by the very same common order as his application seeking amendment filed under Order 6 rule 17 of CPC was rejected by the trial Court, so he has filed the present writ application challenging such rejection application filed below Exh. 11.
Submission of the petitioner-plaintiff
7. Learned senior advocate Mr. Percy Kavina with learned advocate Mr. H.J. Karathiya for the petitioner would submit Page 4 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined that the order impugned in the present writ application is ex- facie bad in law, contrary to the provisions of under Order 6 rule 17 of CPC and without appreciating controversy involved in the suit, the impugned application filed below Exh.11 was rejected.
7.1 Learned senior advocate Mr. Kavina would further submit that the trial Court has committed gross error of law by not allowing amendment as sought for in the impugned application filed below Exh. 11, as by amendment would not change the nature of suit, thereby, amendment as sought by the plaintiff is completely misread by Trial Court resulted into miscarriage of justice.
7.2 Learned senior advocate Mr. Kavina would further submit that by challenging the sale-deed executed by defendants No. 1 to 3 in favour of defendant No.4 would not by any stretch of imagination, would change the nature of suit as basic nature of the suit would remain the same as it is filed for declaration and injunction as well as apart from seeking specific performance for agreement to sell.
7.3 Learned senior advocate Mr. Kavina would further submit that neither there would be any change of nature of suit nor scope of suit would get enlarge by granting Page 5 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined amendment as sought for in the impugned application. He would further submit that as per settled legal position of law, in the present case when plaintiff who happens to be agreement to sell holder prior in point of time and during the pendency of the suit, if original owner of land sold the suit land to third party by way of registered sale-deed, such agreement for sell holder would entitle to challenge such deed in his existing suit seeking performance of agreement to sell executed with the original owner otherwise in absence of such challenge when suit gets decree in favour of plaintiff, it would be difficult for plaintiff to get fruits of such decree unless such sale-deed in question also gets set aside, for which necessary declaration from the Civil Court requires under law.
7.4 To buttress his argument, learned senior advocate Mr. Kavina would refer and rely upon the judgments of the Hon'ble Apex Court as well as this Court.
(i) Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1.
(ii) B. Vijyabharati Vs. P. Savitri reported in (2018) 11 SCC 761. Page 6 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined
(iii) Champaben D/o Govanbhai Kalabhai WD/o Bachubhai Vs. Khushmanbhai Chandubhai since deceased through Lhr.
And others passed on 20.03.2025 in Special Civil Application No. 16214 of 2024.
Submission of respondent No.4-defendant No.4
8. Learned advocate Mr. Brij Sheth for respondent No.4 would submit that there is no error much less gross error of law committed by the trial Court while rejecting the impugned application filed below Exh.11, inasmuch as by allowing such application, nature of suit would get change. He would further submit that the suit was initially filed seeking specific performance for agreement to sell executed by plaintiff with defendant No.1 to 3 in which defendant no.4 was not party and now by way of seeking an amendment, the plaintiff wants to challenge sale-deed executed by defendants no. 1 to 3 in favour of defendant No.4 whereby, nature of suit would change.
8.1 Learned advocate Mr. Sheth would further submit that by granting relief as prayed in the impugned application, scope of suit would get enlarge inasmuch as the plaintiff was not party to the sale-deed executed between defendants No.1 to 3 and defendant no.4, now by virtue of his joining, he Page 7 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined would also become part of the suit and his sale deed having been questioned by way of amendment in the suit.
8.2 Learned advocate Mr. Sheth would further submit that real controversy involved in the suit filed at the instance of the plaintiff would be as to whether he would entitle to get specific performance of his agreement to sell executed with defendant No. 1 to 3 or not and not in regards to the sale- deed executed by defendants No. 1 to 3 in favour of defendant No.4. He would further submit that by way of seeking amendment, the suit for specific performance is now converted into suit for declaration, inasmuch as title of defendant No.4 would be challenged at the instance of plaintiff by way of such amendment which is not permissible under law.
8.3 Learned advocate Mr. Sheth would further submit that Section 52 of Transfer of Property Act, rule of lis pendens would apply and if ultimately plaintiff succeeds in the suit, then after, he can question the sale-deed of defendant no.4. It is further submitted that plaintiff is required to file an independent suit and can not sought an amendment in the existing suit.
8.4 To buttress his argument, learned advocate Mr. Sheth Page 8 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined for respondent No.4 would refer and rely upon the decisions of the Hon'ble Apex Court.
(i) Bharat Karsondas Thakkar Vs. M/s Kiran Construction Co. and others reported in 2008 AIR SCW 3192 : (2008) 2 SCC 919.
(ii) Alkapuri Co-operative Housing Society Ltd. Vs. Jayantbhai Naginbhai (deceased) through Lrs. Reported in (2009) 3 SCC 467.
(iii) Asian Hotel (North) Ltd. Vs. Alok Kumar Lodha and ors. Reported in 2022 LiveLaw (SC) 585 : (2002) 8 SCC 145.
9. No other and further submissions have been made by the learned advocates for the respective parties.
Point for determination.
Whether in the facts and circumstances of the case, any gross error of law and or jurisdictional error committed by the trial Court or not while rejecting the impugned application filed below Exh.11 under Order 6 rule 17 of CPC by the plaintiff, whereby not allowed plaintiff to challenge sale deed executed by original owners in favour of transferee pendente lite?
Page 9 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined ANALYSIS
10. The facts which are referred hereinabove are not in dispute. It is remain undisputed that pending the suit, original owner has executed sale-deed in relation to suit property in favour of defendant no.4 and by virtue of such registered sale-deed, he became owner of the suit property in question.
10.1 The grounds on which the trial Court disallowed the amendment as sought for, is two folds. Firstly, it has been observed that by granting an amendment as sought for, nature of suit gets change, secondly, it has been observed that by way of an amendment it would be enlarged the scope of suit. Both these grounds as misconceived notion of the trial Court, which ultimately resulted into rejection of impugned amendment application.
10.2 The nature of suit would not get change merely because the plaintiff, who happens to be agreement to sell holder challenging subsequent sale-deed executed by original owner in favour of defendant no.4 that to pending suit proceeding. The suit itself is seeking specific performance of agreement to sell and so also sought Page 10 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined declaration and injunction.
10.3 The defendant no.4 is transferee pendente lite and as per S. 52 of Transfer of Property Act, 1882, his sale deed would always be governed by the outcome of the present suit which is already instituted prior to execution of sale- deed in his favour by original owners of suit property. If ultimately, plaintiff would succeed in his suit by getting decree as prayed for, as a consequence, sale-deed which has been executed by original owner in favour of defendant No.4 requires to be quashed and set aside unless it would come on record and proved by defendant No.4 that he is a bona- fide purchaser value without notice and his sale-deed may not be disturbed by the decree passed by Trial Court.
10.4 This aspect of the matter can be gone into by the trial Court at the ends of trial Court of the suit. So, this Court would not like to make any further comment on such issue except to discuss the fact that if plaintiff wants to challenge the sale-deed executed by original owners during pendency of his suit in favour of transferee pendente lite, he can not be precluded from doing so. By no stretch of imagination, it can be said that by granting an amendment as sought for would change the nature of suit.
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11. To more effectively understand the issue germen in the matter, I would like to refer few decisions of Hon'ble Apex Court which would not only helpful to decide issue involved herein but clear doubts from everyone's mind.
11.1 In a case of H ANJANAPPA & ORS V/S A PRABHAKAR & ORS; BEENA ANTHONY & ORS reported in 2025 INSC 121 : 2025 SCC OnLine SC 183 wherein held thus:
"58. From a conspectus of all the aforesaid judgments, touching upon the present aspect, broadly, the following would emerge:
i First, for the purpose of impleading a transferee pendente lite, the facts and circumstances should be gone into and basing on the necessary facts, the Court can permit such a party to come on record, either under Order I Rule 10 CPC or under Order XXII Rule 10 CPC, as a general principle;
ii. Secondly, a transferee pendente lite is not entitled to come on record as a matter of right;
iii. Thirdly, there is no absolute rule that such a transferee pendente lite, with the leave of the Court should, in all cases, be allowed to come on record as a party; iv. Fourthly, the impleadment of a transferee pendente lite would depend upon the nature of the suit and appreciation of the material available on record;
v Fifthly, where a transferee pendente lite does not ask for leave to come on record, that would obviously be at his peril, and the suit may be improperly conducted by the plaintiff on record;
vi. Sixthly, merely because such transferee pendente lite does not come on record, the concept of him (transferee pendente lite) not being bound by the judgment does not arise and consequently he would be bound by the result of the litigation, though he remains unrepresented;
Page 12 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined vii. Seventhly, the sale transaction pendente lite is hit by the provisions of Section 52 of the Transfer of Property Act; and, viii. Eighthly, a transferee pendente lite, being an assignee of interest in the property, as envisaged under Order XXII Rule 10 CPC, can seek leave of the Court to come record on his own or at the instance of either party to the suit." (emphasis supplied) 11.2 In the case of RATHNAVATHI & ANOTHER V/S KAVITA GANASHAMDAS, reported in (2015) 5 SCC 223 wherein Hon'ble Apex Court while decreeing suit in favour of prior agreement to sale holder observed as under :-
"55. Before concluding we consider apposite to take note of two more issues. The High Court while passing the decree directed both the defendants i.e. owner of the suit house (vendor) defendant no.2 and subsequent purchaser (defendant no. 1) to execute the sale deed of the suit house jointly in favour of the plaintiff' to avoid any legal complications, provided the plaintiff pays Rs. 4 lacs over and above Rs. 3,50,000/- to the owner of suit house (defendant no. 2).
56. A direction of this nature is permissible. It was so held by this Court way back in the year 1954 in Lala Durga Prasad and Anr. Vs. Lala Deep Chand and Ors., 1954 AIR(SC) 75, wherein the learned Judge Vivian Bose J. known for his subtle power of expression and distinctive style of writing while speaking for the bench held as under:
"In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This Page 13 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin, 1931 AIR(Cal) 67 and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, paragraph 207; also Potter v. Sanders, 1846 67 ER 1057. We direct accordingly."
57. We respectfully follow these observations and accordingly uphold the direction issued by the High Court for execution of the sale deed.
58. There is, however, one more aspect of the case which needs to be taken note of and has arisen in the case as a result of passing of the impugned decree in plaintiff's favour by the High Court and upheld by this Court.
59. The effect of execution of sale deed in plaintiff's favour by the defendants in terms of decree would obviously result in cancellation of contract of sale of the suit house between the owner (defendant no. 2) and subsequent purchaser (defendant no.
1). The reason is not far to seek."
(emphasis supplied) 11.3 It would be apt to refer and rely upon the decision of the Hon'ble Apex Court in the case of Sampath Kumar vs Ayyakannu And Anr reported in 2002 (7) SCC 559, wherein it was held thus:-
"[5] The short question arising for decision is whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into suit for declaration of title and recovery of possession.
[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 Page 14 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined 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 open 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 plaintiff's 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. "
(emphasis supplied) 11.4 Even the observation made by Hon'ble Apex Court in the case of B. Vijyabharati (supra) would also requires to be taken note of, thereby it would be incumbent upon plaintiff to seek cancellation of subsequent sale deed executed by original defendant Nos. 1 to 3 (owners) in favour of defendant No.4. The relevant observation reads as under:
"17. It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by Defendant No. 1 to Defendant No.2, and thereafter by Defendant No.2 to Defendant No.3 are set aside, no decree for specific performance could possibly follow."
(emphasis supplied)
12. Thus, in view of the aforesaid decisions of the Hon'ble Supreme Court and having so applied its ratio to the facts of Page 15 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined the present case, it can be safely held that by way of granting the amendment in favour of the plaintiffs, the nature of the suit is not going to be changed; only the nature of the relief may get changed, but that would not be a ground to refuse the amendment which is otherwise necessary to be made especially when defendant No.4 - subsequent purchaser is allowed to be joined and in fact now already joined in the suit.
13. So far as the enlargement of scope of suit is concerned, there is no bar under the law whereby, if granting amendment as sought for, even if enlarged the scope of suit, such amendment can not be granted. This appears to be total misconception of law on the part of the trial Court, whereby, it has rejected the impugned application also on ground that by granting amendment, it would enlarge scope of suit. As such, it has been now well settled legal position of law that ordinarily all amendment should be liberally allowed unless barred by law and or seriously prejudice vested right of opposite party, which is not the case on hand. Even otherwise, as per submission of learned advocate Mr. Sheth that plaintiff can very well challenge sale deed executed by defendant Nos. 1 to 3 in favour of defendant No.4 by way of substantive suit. If such recourse is permissible, I am of the view that by way of an amendment itself in existing suit, Page 16 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined surely such sale deed can be questioned in the present suit itself thereby, it can avoid multiplicity of suit proceeding.
14. At this stage, it would be apt to refer and rely upon the decision of the Hon'ble Apex Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1, the Hon'ble Apex Court on the issue of amendment held thus :-
"71. Our final conclusions may be summed up thus:
71.1 Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. 71.2 All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
71.3 The prayer for amendment is to be allowed 71.3.1 if the amendment is required for effective and proper adjudication of the controversy between the parties, and 71.3.2 to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and Page 17 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4 A prayer for amendment is generally required to be allowed unless 71.4.1 By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, 71.4.2 The amendment changes the nature of the suit, 71.4.3 The prayer for amendment is malafide, or 71.4.4 By the amendment, the other side loses a valid defence.
71.5 In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6 Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7 Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
71.8 Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9 Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10 Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already Page 18 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11 Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"
(emphasis supplied)
15. As such the decisions which are relied by the learned advocate Mr. Sheth for the respondent No.4, none of the decisions would be applicable to the facts of the present case. In as much as, this Court has already opined that by granting amendment as sought for by the plaintiff, neither nature of the suit gets change nor it would be barred by law, so such decisions not to be discussed anymore except to say that it would not be helpful to the case of the defendant No.4, having on points not germen in the matter.
16. I am very much conscious that in a limited jurisdiction vested with this Court under Article 227 of the Constitution of India, and such power should be sparingly exercised, but when this Court found that impugned order is not in Page 19 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined consonance with law, it requires to exercise its supervisory power to keep the subordinate courts within the bounds of their authority otherwise it allowing miscarriage of justice which never to be done. [See - Waryam Singh v/s Amarnath
- AIR 1954 SC 215].
17. The upshot of the aforesaid discussions, observations, and reasons, leads to only one conclusion that the impugned order is not only bad in law but erroneous, perverse and contrary to the settled principle of law which is discussed hereinabove, thereby it is requires to be quashed and set aside.
18. Nonetheless, once such amendment would be allowed and plaint gets amended, defendant no.4 will have the right to defend the suit on its merit and allow to file his written statement vis-a-vis amendment sought for in the impugned application.
Conclusion
19. Thus, following conclusion and order :-
(i) The Trial Court has committed a gross error of law and so also jurisdictional error committed by the trial Court while rejecting the impugned application filed below Exh.11 under Page 20 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025 NEUTRAL CITATION C/SCA/694/2024 JUDGMENT DATED: 26/06/2025 undefined Order 6 rule 17 of CPC by the plaintiff, whereby not allowed plaintiff to challenge sale deed executed by original owners in favour of transferee pendente lite.
(ii) Accordingly, the impugned order dated 09.10.2023 passed by the 22nd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Rajkot below Exh.11 in Special Civil Suit No.101 of 2022 is hereby quashed and set aside.
Consequently, impugned application filed below Exh. 11 in Special Civil Suit No.101 of 2022 is hereby allowed.
(iii) The plaintiff is hereby directed to amend the plaint within a period of two weeks from the date of receipt of copy of this order. Likewise defendants are permitted to file an amended written/ written statement as the case may be within a period of two weeks from the date of such amended plaint filed by the plaintiff.
20. The present writ application is hereby allowed. Rule is made absolute to the aforesaid extent.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 21 of 21 Uploaded by SALIM(HC01108) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:56:32 IST 2025