Gujarat High Court
Nareshbhai Muljibhai Patel vs Baimadhuben Wd/O Kanubhai Mohanbhai ... on 9 September, 2025
NEUTRAL CITATION
C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26284 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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NARESHBHAI MULJIBHAI PATEL & ANR.
Versus
BAIMADHUBEN WD/O KANUBHAI MOHANBHAI SOLANKI & ORS.
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Appearance:
MR APURVA R KAPADIA(5012) for the Petitioner(s) No. 1,2
MR VIRAT G POPAT(3710) for the Respondent(s) No. 2,4,5
NOTICE SERVED for the Respondent(s) No. 6
UNSERVED EXPIRED (N) for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 09/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Maharshi H. Patel for learned advocate Mr.Virat G. Popat waives service of notice of rule on behalf of the respondent. Though served, none appears for the respondent no.6 and respondent nos.1 and 3 reported died.
2. Heard learned advocate Mr.Apurva R. Kapadia for the petitioner and learned advocate Mr.Maharshi H. Patel for Page 1 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined learned advocate Mr.Virat G. Popat for the respondent Nos.2, 4 and 5.
3. At the outset, learned advocate Mr. Kapadia would submit that so far as respondent No.1 is concerned, his legal heirs are already available on this writ application. It is so declared by respondent No.2 before the Trial Court, that there are no legal heirs of respondent No.3.
4. The present application is filed under Article 227 of the Constitution of India seeking the following relief:-
"(A) YOUR LORDSHIPS may be pleased to admit this petition.
(B) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 20.09.2022 passed below application, Exh. 128 by the learned Principal Senior Civil Judge, Narmada at Rajpipla in Special Civil Suit No.48/2010, and thereby allow the application, Exh.128 as prayed for.
(C) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIP may be pleased to stay further proceedings of Special Civil Suit No.48/2010 pending before the court of the learned Principal Senior Civil Judge, Narmada at Rajpipla.
(D) YOUR LORDSHIPS be pleased to pass such other order and further orders as may be deemed just and proper in the interest of justice."Page 2 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
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5. The parties will be referred to as per their original position.
6. THE SHORT FACTS OF THE CASE 6.1. The petitioners herein are original plaintiffs, whereas respondents herein are original defendants of Special Civil Suit No.48 of 2010 pending before the Principal Senior Civil Judge, Rajpipla, District Narmada.
6.2. The suit is filed seeking specific performance of an agreement to sell executed between the plaintiff and defendants No.1 to 5 on 26.08.2009 for the suit property in question. 6.3. It appears that during the pendency of the suit, the original owners, i.e., defendant Nos.1 to 5, sold the suit property in favor of defendant No.6.
6.4. The plaintiff appears to have joined defendant No.6 by filing an application below Exhibit 101 on 19.07.2016, whereby the Trial Court vide its order dated 09.04.2018, joined defendant No.6 as transferee pendente lite. Thereafter, issues were framed on 20.12.2018.
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NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 6.5. It further appears that the plaintiff filed an impugned amendment application below Exhibit 128 seeking an amendment of the plaint and prayer clause to the effect that as an alternative prayer, plaintiffs are asking for refund of earnest money with interest and so also, asking for compensation. 6.6. After hearing the parties, the Trial Court, by its order dated 20.09.2022, rejected the impugned application. Hence the present application.
7. SUBMISSION OF THE PETITIONERS - PLAINTIFFS 7.1. Learned advocate Mr. Kapadia would submit that the order impugned is ex facie erroneous, perverse, and contrary to provisions of law and requires to be quashed and set aside. It is submitted that the Trial Court has committed a manifest error by observing that once, issues are framed in the matter, the trial commenced, and amendments sought by the plaintiff could not have been granted as having not observed due diligence.
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NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 7.2. Learned advocate Mr. Kapadia would submit that as per the provision of Section 21 read with Section 22 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act, 1963"), at any stage of the proceeding, the plaintiff can ask for a refund of earnest money and so also, compensation. It is submitted that when such is the provision of law, the amendment sought for by the plaintiff, in a suit filed the suit for specific performance, it could not have been rejected. 7.3. Learned advocate Mr. Kapadia would further submit that as per the settled legal position of law, mere framing of issues by the Trial Court would not be considered to be the commencement of trial as such.
7.4. It is submitted that when the impugned amendment application came to be filed by the plaintiff, no oral evidence commenced inasmuch as the plaintiffs have not filed an affidavit of examination-in-chief in lieu of oral evidence. 7.5. Lastly, learned advocate Mr. Kapadia would request this Court that as per the settled legal position of law, the Page 5 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined amendment ordinarily should be allowed liberally, when it is a pre-amendment before the commencement of trial of the suit. 7.6. To buttress his argument, learned advocate Mr. Kapadia would rely upon the following decisions:-
(i) Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1;
(ii) Champaben D/O Govanbhai Kalabhai Wd/O Bachubhai Gomanbhai Versus Khushmanbhai Chandubhai Since Decd Through Lhr & Ors in Special Civil Application No.16214 of 2024, Paras 15 to 25, dated 20/3/2025;
(iii) Jitendrakumar Ramanlal Patel & Anr. Versus Ansuyaben Wd/O Mahendrabhai Chandubhai Patel & Ors in Special Civil Application No.17070 of 2021, dated 10th July 2025 in Paras 12 to 22;
(iv) Chandrabhushan Ramnand Sinh & Anr. Versus Nilaben D/O. Bhogilal B Patel & Wd/O. Hasmukhlal Page 6 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined M Shah & Ors. in Special Civil Application No.13512 of 2011, dated 22/8/2025, in Paras 32 to 33. 7.7. Making the above submission, learned Mr. Kapadia would request this Court to allow the present application.
8. SUBMISSION OF THE RESPONDENTS 8.1. Learned advocate Mr. Patel for learned advocate Mr. Popat would submit that there is no error, much less any gross error, committed by the Trial Court while rejecting the application. It is submitted that the relief as prayed for in the impugned application by the plaintiff could have been sought when the suit was filed in the year, 2010 itself. 8.2. Learned advocate Mr. Patel would further submit that so far as the refund of earnest money is concerned, the plaintiff could have asked for such relief at the time of institution of the suit itself. Having not done so, at this stage, he could not have been permitted to seek such relief. Page 7 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 8.3. Learned advocate Mr. Patel would further submit that compensation, though asked for by way of amendment, could not have been considered inasmuch as no possession of the suit premises was handed over to the plaintiff, thereby the question of making profit out of sub-plotting the suit land would not arise at all. It is respectfully submitted that such amendment is as vague as the suit of the plaintiff, which is pending before the Trial Court, and thereby, no error can be found with the order impugned passed by the Trial Court. 8.4. Lastly, learned advocate Mr. Patel would submit that if the amendment sought for will be granted by this Court, it would change the nature of the suit. It is submitted that the suit initially is filed for seeking specific performance of the agreement for sale and by way of amendment, the plaintiff is now asking for refund of the amount, be it as earnest money or compensation, as the case may be. So, its definitely changes the nature of suit. It is submitted that as per the settled legal position of law, if the amendment sought for changes the nature of the suit, it cannot be granted by the court. Page 8 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 8.5. Making the above submission, learned advocate Mr. Patel would request this Court not to entertain the present application.
9. No other and further submissions are made.
10. ANALYSIS
11. Having heard learned advocates appearing for the respective parties at length and after going through the impugned application and so also the impugned order, the following emerges:-
11.1. The suit is filed seeking specific performance of the agreement.
11.2. The amendment sought for is for alternative reliefs, i.e. refund of earnest money with interest and compensation in the form of damages.
11.3. The issues were framed on 20.12.2018, whereas the impugned application came to be filed on 20.08.2019.
11.4. It is undisputed fact that the evidence of the plaintiff not begun when the impugned application came to be filed i.e. Page 9 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined affidavit in form of examination in chief in lieu of oral evidence not filed.
12. When this is the factual situation, the issue germane in the matter would be squarely covered by decisions so cited by learned advocate Mr. Kapadia.
13. The only reason so assigned by the Trial Court while rejecting the impugned application that such application was filed subsequent to the framing of issues, whereby, according to the Trial Court, the proviso to Order VI Rule 17 of Civil Procedure Code, 1908 (hereinafter referred to as "CPC") would be applicable inasmuch as the plaintiff did not show any due diligence when submitted the impugned application.
14. The view taken by the Trial Court is not only fallacious but erroneous one. It is now a well-settled legal position of law that merely issues framed by the Trial Court would not amount to the commencement of trial. The issue is no longer remain res integra covered by cited decision.Page 10 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
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15. At this stage, it would be desirable to refer to and rely upon some of the observations made by this Court in the case of Champaben (supra) in Special Civil Application No. 16214 of 2024 wherein it has held thus:-
"15. In the present case issues were framed on 27.01.2021 whereas, the impugned amendment application came to be filed on 21.12.2023 but it is undisputed fact that till the date of filing the impugned application, the plaintiff has not stepped into witness box for her oral evidence be it filing examination in chief in lieu of her oral evidence or her cross-examination yet not begin. If this Court analysis the ratio of the aforementioned decisions of the Hon'ble Apex Court, what is deduced that trial would not commence unless plaintiff step into witness box for examination / cross examination.
16. It is true that in the case of Kailash (supra), the Hon'ble Apex Court has observed that in a civil suit, trial begins when issues are framed and the case is set down for recording of evidence. It is required to be observed that Hon'ble Apex Court in the case of Kailash (supra), never held that trial begins when issues are framed but it also simultaneously stated that trial begins when the case is set down for recording the evidence. So, prima-facie, one can inferred from decision in the case of Kailash (supra) that when twin conditions i.e. framing of issues as well as case set down for recording of evidence fulfill, trail can be said to have begins.
17. In furtherance of what is observed herein above, subsequent to decision in the case of Kailash (supra), first in point of time, in the case of Baldevsingh (supra) (decision dated 03-08-2006), it has been so held by the Hon'ble Apex Court that commencement of trial as used in proviso to Order 6 rule 17 of CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of the witnesses, filing of documents and addressing of arguments. Prima-facie, the Hon'ble Apex Court in the case of Baldevsingh (supra) for the first time has elaborated meaning of commencement of trial in context of Order 6 rule 17 of CPC.
18. It is true that in a case of Ajendra Prasad (supra) (decision dated 08-12-2006), Hon'ble Apex Court had held that be it date of settlement of issues or treating the filing of affidavit as examination in chief as a Page 11 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined date of commencement of trial, matter will fall under proviso to Order 6 rule 17 of CPC. So, in the case of Ajendra Prasad (supra) also, it has not been held that date of settlement of issues alone is a date of commencement of trial. Even, in the case of Ajendra Prasad (supra), undisputedly amendment application was filed by defendant on 24.11.2005 which was subsequent to submitting affidavit of examination-in-chief of plaintiff which was submitted on 21.11.2005. In that background of facts, the Hon'ble Apex Court has turned down amendment applying proviso to Order 6 rule 17 of CPC. It is required to be noted here that decision in the case of Baldevsingh (supra) is prior in point of time to the case of Ajendra Prasad (supra). So, as per rule of binding precedent, decision taken by former would be binding to later one.
19. In the case of Vidyabai (supra), which had considered all the said three decisions and after considering its ratio, the Hon'ble Apex Court held that "Filing of an affidavit in lieu of examination-in-chief of witness, in our opinion, would amount to "commencement of proceedings . "
20. Whereas, in the case of Mohindra Kumar Mehra (supra) after taking note of its previous decisions especially in the case of Vidyabai (supra), the Hon'ble Apex Court has held that "After issues are framed and case is fixed for hearing and party having right to begin is to produce his evidence, trial of suit commences. The proviso to Order 6 rule 17 of CPC prohibited entertainment of amendment application after commencement of trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced."
21. At this stage it is also profitable to refer and rely upon the Full Bench decision of the Hon'ble Apex Court in the case of Union of India Vs. Major General Madan Lal Yadav (Rtd.) reported in (1996) 4 SCC 127, wherein it has been held in Para 13 to 19, which reads as under:-
"13. The words "trial commences" employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word 'trial' according to Collins English Dictionary means:
"the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of Page 12 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined the land. b. the determination of an accused person's guilt or innocence after hearing evidence for the prosecution and nor the accused and the judicial examination of the issues involved".
14. According to Ballentine's Law Dictionary [2nd ed.] 'trial' means:
"an examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a court hears and determines any issue of fact or law for the purpose of determining the right of the parties, it may be considered a trial"
15. In Block's Law Dictionary [Sixth Edition] Centennial Edition, the word 'trial' is defined thus:
"A judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction... A judicial examination, in accordance with law of the land, of a cause, either civil or Criminal, of the issues between the parties, whether of law orfacts, before a court that has proper jurisdiction".
16. In Webster's Comprehensive Dictionary International Edition, at page 1339, the word 'trial' is defined thus:
"....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed in the course of trying or testing...".
17. The word `commence' is defined in Collins English Dictionary to mean "to start or begin; come or cause to come into being, operation etc." In Black's Law Dictionary it is defined to mean:
"to initiate by performing the first act or step. To begin, institute or start.
Civil action in most jurisdictions is commenced by filing a complaint with the court....Page 13 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined Criminal action is commenced within statute of limitations at time preliminary complaint or information is filed with magistrate in good faith and a warrant issued thereon... A criminal prosecution is "commenced" [1] when information is laid before magistrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment".
18. In the "Words and Phrases" [Permanent Edition] Vol.42A, at page 171, under the head "Commencement", it is stated that ".4 'trial' commences at least from the time when work of empanelling of a jury begins".
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial." (emphasis supplied)
22. It is apposite to refer the decision of the Division Bench of Calcutta High Court in the case of Sree Sree Iswar Radha Behari Jew Vs. Malati P. Soni reported in AIR 2019 Calcutta 131 has observed and held as under in Para 2 & 38 :-
"2. A single bench of this court has put up the following question for a decision on reference :
"Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], 'commencement of trial', as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?"
38. The question raised in the reference is, thus, answered as follows the expression "commencement of trial" in the proviso to Order VI, Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier."
(emphasis supplied) Page 14 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined
23. Similarly, the Division Bench of Bombay High Court in the case of Mahadeo Vs. Balaji and others reported in 2012 SCC Online Bom. 1283 observed and held as under in Para- 1 & 26.
"1. This Writ Petition has been referred to us to answer the following questions of law;
i] Whether the view taken by learned Single Judge of this Court in " Ajit Narsinha Talekar Vs. Smt. 9659.2010 Writ Petition Nirmala Wamanrao Kakade and others" 2010 (5) Mah.L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009), is legal and proper and the trial in civil suit commences on the date of the framing of the issues or that it commences from the date of filing of affidavit in lieu of examination-in- chief? ii] Whether proviso appended to Order-VI Rule-17 of the Code of Civil Procedure is attracted after framing of the issues or it will come into play only after stage of filing of affidavit/s in lieu of examination-in-chief of witness/ es?
26. In view of the aforesaid discussion, the view expressed by learned Single Judges of this Court in " Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others " 2010 (5) Mah.L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and "
Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)", needs to be endorsed as legal and proper. In our considered view, the trial in a Writ Petition civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/es." (emphasis supplied)
24. Thus, after going through the aforesaid decisions of Hon'ble Apex Court and High Court of Calcutta and Bombay,it is by now well settled position of law that commencement of trial of civil suit in relation to proviso to Order 6 rule 17 of CPC would be a date of filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff and not only date of the settlement of issues.
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25. Now, coming back to the facts of the present case, undisputedly impugned amendment application is filed prior to filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff, which in fact yet to be filed by plaintiff. So, according to my view, proviso to Order 6 rule 17 of CPC would not apply to the facts of the present case."
(emphasis supplied)
16. Thus, in view of the aforesaid, it would be gainsaid that the trial of the suit would not commence merely issues are framed.
17. In light of the aforesaid, the impugned order requires to be interfered with by this Court while exercising its power of superintendence under Article 227 of the Constitution of India.
18. Now, adverting to another limb of argument so canvassed by learned advocates appearing for the respective parties' vis- à-vis the actual amendment sought for by plaintiffs, i.e., asking for refund of earnest money with interest and compensation.
19. Both these amendments are as such governed by respective provisions of Section 21 and 22 of the Act, 1963. As per proviso to Section 21 of the Act, 1963, at any stage of the proceeding, such relief of compensation can be sought for by the plaintiffs having filed a suit for specific performance. Page 16 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
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20. Likewise, if so desired, the Court at any stage of the proceeding may allow the plaintiff to claim refund of earnest money as per proviso to sub-section 2 of Section 22 read with Section 22(1) (b) of the Act, 1963.
21. This issue so raised and argued by respective learned advocates is also discussed and decided by this Court in its following decisions:-
21.1. In the case of Jitendrakumar (supra) in Special Civil Application No.17070 of 2021, this Court has held thus:-
"12. For ready perusal of Section 21 of the Specific Reliefs Act, 1963 reads thus :-
"21. Power to award compensation in certain cases. -(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach [in addition to] such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872). (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation Page 17 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.-The circumstances that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section."
13. The plain reading of the aforesaid provisions of the Act, 1963 would clear every one's doubt that the plaintiffs having not claimed any compensation in the plaint filed for specific performance can claim at any stage of proceedings and the Court should at any stage of proceedings, allow plaintiff to amend the plaint on such terms as may be just.
14. Even in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1 as discussed and analysis the aforesaid provisions of law and its applicability in such counts of suit seeking for specific performance observed that plaintiff can amend plaint at any stage of proceeding by incorporating claim of compensation subject to principle relief of specific performance of contract is not given up by plaintiff. (See : Sanjeev Builders (supra) - Para-3, 8, 56-62 )
15. The Co-ordinate Bench of this Court has also discussed the very provisions which is germane in the present matter and accordingly approved such amendment [See : Kiritbhai Chandubhai Kangariwala (supra) ]
16. Thus, in view of the aforesaid, entire basis of rejecting the impugned application by the trial Court falls on ground as it has committed serious error of law and so also jurisdictional error by not permitting amendment of plaint, so far as addition of prayer of compensation is concerned.
18. Be that as it may, it is now well settled legal position of law that mere delay, negligence and or inaction on the part of the parties to the suit to bring amendment would not be a ground to deny it unless there is serious prejudice cause to the other side.
19. It would apt to refer and rely upon the following conclusion 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 after revisiting its decision, 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 Page 18 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 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 (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 pinpointedly 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 Page 19 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 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 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)
20. The another decision of Hon'ble Supreme Court in the case of Jai Jai Ram Monohar Lal vs. National Building Material Supply, (1969) 1 SC 869, wherein it has been held as under :-
"5. The order passed by the High Court cannot be sustained. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or Page 20 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. In Amulakchand Mewaram v. Babulal Kanalal Taliwala,1933 35 BomLR 569 :
1933 SCC OnLine Bom 72 , Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed:
"the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs."
(emphasis supplied)
21. It would also profitable to refer the decision of Hon'ble Supreme Court in the case of Varun Pahwa Vs. Renu Chaudhary, (2019) 15 SCC 628 wherein observed thus:-
"8. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations ."
(emphasis supplied)
22. Thus, in view of the aforesaid, I am not convinced with the argument canvassed by the learned advocate Mr. Thakkar for respondent No.6 that other amendment which are sought for by the plaintiffs having sought after long time cannot be granted.........
(emphasis supplied) Page 21 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined
22. In the case of Chandrabhushan (Supra) in Special Civil Application No.13512 of 2011, this Court held thus:-
"31. It is no longer remain res integra that vendee-buyer can recover earnest money so paid by him while entered into ATS with seller within 12 years when the money sued for becomes due albeit, fulfilling condition/contingency so prescribed under S. 55 (6)
(b) of the Act,1882. [See- (I) DELHI DEVELOPMENT AUTHORITY NEW DELHI VERSUS SKIPPER CONSTRUCTION CO. (PVT) LTD, 2000 10 SCC 130 , (II) VIDEOCON PROPERTIES LTD Versus BHALCHANDRA LABORATORIES, 2004 3 SCC 711 & (III) Asgar S Patel (supra) ].
33. Thus, in view of aforesaid, the an alternative relief sought for in the amendment by plaintiffs in regards to refund of earnest money with interest could not have been disallowed by Trial Court as its not time barred having filed amendment for recovery of earnest money within 12 years from its becomes due. To that extent, order impugned having ignored such provisions of law and not granted such part of amendment is erroneous, perverse and contrary to law. At the same time, defendants can also have a right to object against refund of earnest money by filing appropriate amendment in the written statement. The entitlement of plaintiff to get back earnest money with interest will have to be decided by trial Court while adjudicating other issues in accordance with law."
(emphasis supplied)
23. In light of the aforesaid, the amendment sought for could have been granted by the Trial Court as neither its time barred nor barred by any law, and having not done so, committed jurisdictional error inasmuch as the Trial Court has not Page 22 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined appreciated the aforesaid provisions of law and misdirected itself by erroneously relying upon the proviso to Order VI Rule 17 of C.P.C.
24. So far as the another submission of learned advocate Mr. Patel appearing for the respondents that by granting amendment, it changes the nature of the suit is concerned, such argument is also fallacious and not sustainable at law.
25. The nature of the suit would not be changed inasmuch as the suit is filed seeking specific performance of an agreement and it is filed under provisions of the Specific Relief Act, 1963. The amendment, which is sought for also, fall under the provisions of Section 21 and 22 of the Act, 1963 and same is permissible in law and can be resorted to any stage of proceeding of the suit as discussed herein above.
26. As such, the nature of the suit remains the same, but the nature of reliefs would definitely change, thereby, in a case where the Trial Court would not grant relief of specific performance in favor of the plaintiff, as an alternative relief, it Page 23 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined may so grant relief for refund of earnest money and so also compensation if the case will make out and proved by the plaintiff in accordance with law. So, merely nature of reliefs change would not be a ground not to grant such amendment. [See - SAMPATH KUMAR Versus AYYAKANNU reported in (2002) 7 SCC 559 - para-7 & 9].
27. In a nutshell, the impugned amendment application could not have been rejected by the Trial Court as the amendment sought for is neither barred by any law nor changes the nature of the suit.
28. Thus, for the foregoing reasons, this Court is of the view that impugned orders suffer from jurisdictional error and approach of the Trial Court is just opposite to what is settled legal position of law, requires to be interfered by this Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India. Its by now well settled that in a case of jurisdictional error committed by Trial Court and so also to keep the Court within its bound, such power of superintendence vested with this Court requires to be exercised Page 24 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025 NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined for ends of justice. [See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]
29. CONCLUSION
30. The upshot of the aforesaid observations, discussion, and reasons, leads to only one conclusion that the impugned order dated 20.09.2022 passed by the Principal Senior Civil Judge, Rajpipla at Narmada, below Exhibit 128 in Special Civil Suit No.48 of 2010 is hereby quashed and set aside. Consequently, the impugned application filed below Exhibit 128 in the aforesaid suit is hereby allowed.
30.1. The plaintiffs are hereby directed to submit the amended plaint within a period of 15 days from the receipt of the copy of this order.
30.2. Likewise, once the amended plaint is received, the defendants are also permitted to file an additional written statement, if so desired, in response to the amended plaint. Page 25 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025
NEUTRAL CITATION C/SCA/26284/2022 JUDGMENT DATED: 09/09/2025 undefined 30.3. After amended pleading of the suit is so requested and so desired, it may frame additional issues. 30.4. Thereafter, the Trial Court shall proceed with the trial of the suit in accordance with law.
31. In view of the foregoing conclusion, the present application is hereby allowed to the aforesaid extent. Rule is made absolute accordingly. Interim relief if any granted earlier stands vacated forthwith. No order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J) MOHD MONIS Page 26 of 26 Uploaded by MOHD MONIS(HC01900) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 00:40:06 IST 2025