SCA/14440/2008 of PREMKUVERBEN PARSHOTTAM JOSHI THROUGH HER POWER OF ATTORNEY Vs HUSSAIN MOHMED LADHA VAGHER on 26 December 2008

ORAL JUDGMENT

1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for appropriate writ, order and/or directions Constitution of India, the petitioner – original plaintiff has prayed for appropriate writ, order and/or directions quashing and setting aside the impugned order dtd.17/10/2008 passed by the learned Principal Civil Judge, Mundra below application Ex.58 in Regular Civil Suit No. 6 of 2002 by which the learned trial court has dismissed the said application submitted by the petitioner - plaintiff to amend the plaint under Order VI Rule 17 of the Code of Civil Procedure. dtd.17/10/2008 passed by the learned Principal Civil Judge, Mundra below application Ex.58 in Regular Civil Suit No. 6 of 2002 by which the learned trial court has dismissed the said application submitted by the petitioner - plaintiff to amend the plaint under Order VI Rule 17 of the Code of Civil Procedure.

2. The petitioner herein – original plaintiff had instituted Regular Civil Suit No. 6 of 2002 in the court of learned Civil Judge (JD), Mundra for a declaration that the defendants have no right, title or interest with the disputed land bearing Revenue Survey Nos.278/1; for a declaration that the action of the defendants in laying down the railway lines in the land in question without permission of the plaintiff be declared as illegal and unauthorised. The petitioner plaintiff has also further prayed for a mandatory injunction directing the defendants to restore possession of the land in question by removing the railway line from the disputed land. Regular Civil Suit No. 6 of 2002 in the court of learned Civil Judge (JD), Mundra for a declaration that the defendants have no right, title or interest with the disputed land bearing Revenue Survey Nos.278/1; for a declaration that the action of the defendants in laying down the railway lines in the land in question without permission of the plaintiff be declared as illegal and unauthorised. The petitioner plaintiff has also further prayed for a mandatory injunction directing the defendants to restore possession of the land in question by removing the railway line from the disputed land.

3. It is to be noted that the said suit was filed in the month of February, 2002. It appears that during the pendency of of February, 2002. It appears that during the pendency of

the present suit, the original defendant No.1 sold the disputed land in favour of one Natubha V. Jadeja by registered sale deed dtd.30/1/2004 and handed over the possession of the land to him and therefore, the petitioner plaintiff submitted application Ex.58 under Order VI Rule 17 of the Code of Civil Procedure requesting to permit him to amend the plaint by adding para 9(a) bringing on record the sale transaction in favour of Natubha V. Jadeja and also further requesting to join him as defendant No.3 and also for a declaration that the sale transaction in favour of said Natubha V. Jadeja by the defendant No.1 be declared as illegal and to cancel the same. disputed land in favour of one Natubha V. Jadeja by registered sale deed dtd.30/1/2004 and handed over the possession of the land to him and therefore, the petitioner plaintiff submitted application Ex.58 under Order VI Rule 17 of the Code of Civil Procedure requesting to permit him to amend the plaint by adding para 9(a) bringing on record the sale transaction in favour of Natubha V. Jadeja and also further requesting to join him as defendant No.3 and also for a declaration that the sale transaction in favour of said Natubha V. Jadeja by the defendant No.1 be declared as illegal and to cancel the same.

4. The said application was opposed by the respondents herein, more particularly respondent No.2 by submitting that the said amendment application has been submitted belatedly and that if the petitioner plaintiff is permitted to amend the plaint as prayed for, the entire nature of the suit will be changed. That the learned trial court by the impugned order dtd.17/10/2008 dismissed the said application Ex.58, by not permitting the petitioner – plaintiff to amend the plaint as prayed for, by holding herein, more particularly respondent No.2 by submitting that the said amendment application has been submitted belatedly and that if the petitioner plaintiff is permitted to amend the plaint as prayed for, the entire nature of the suit will be changed. That the learned trial court by the impugned order dtd.17/10/2008 dismissed the said application Ex.58, by not permitting the petitioner – plaintiff to amend the plaint as prayed for, by holding that if the same is allowed, the entire nature of the suit will be changed. Being aggrieved by and dissatisfied with the impugned order passed by the learned trial court below application Ex.58 in Regular Civil Suit No. 6 of 2002, the petitioner – plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. will be changed. Being aggrieved by and dissatisfied with the impugned order passed by the learned trial court below application Ex.58 in Regular Civil Suit No. 6 of 2002, the petitioner – plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India.

5. Mr.C.H. Vora, learned advocate appearing on behalf of the petitioner has vehemently submitted that in view of the subsequent development and transfer and handing over the possession of the property by the defendant No.1 in favour of the third party - Natubha V. Jadeja, learned trial court has materially erred in not permitting the petitioner plaintiff to amend the plaint as prayed for incorporating certain development which has taken place after filing of the suit. It is submitted that as the original defendant No.1 has sold the disputed land in favour of the defendant No.3 during the pendency of the suit, the learned trial court ought to have permitted the petitioner to amend the plaint and also prayer for consequential relief of quashing and setting aside the sale deed by the defendant No.1 in favour of the third party. It is submitted the petitioner has vehemently submitted that in view of the subsequent development and transfer and handing over the possession of the property by the defendant No.1 in favour of the third party - Natubha V. Jadeja, learned trial court has materially erred in not permitting the petitioner plaintiff to amend the plaint as prayed for incorporating certain development which has taken place after filing of the suit. It is submitted that as the original defendant No.1 has sold the disputed land in favour of the defendant No.3 during the pendency of the suit, the learned trial court ought to have permitted the petitioner to amend the plaint and also prayer for consequential relief of quashing and setting aside the sale deed by the defendant No.1 in favour of the third party. It is submitted

that in view of the subsequent development and for effective adjudication of the dispute, the learned trial court ought to have permitted the petitioner plaintiff to join the third party – subsequent purchaser as defendant No.3. It is submitted that the learned trial court has materially erred in holding that by allowing the amendment, the entire nature of the suit will be changed. It is submitted that in view of the declaration sought with respect to the disputed land, it cannot be said that by permitting the petitioner plaintiff to amend the plaint as prayed for, the entire nature of the suit will be changed. It is submitted that on the contrary to avoid further multiplicity of proceedings, the learned trial court ought to have allowed the petitioner to amend the plaint as prayed for. The learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Others Vs. K.K. Modi & Others, reported in (2006) 4 S.C.C. 385. Submitting accordingly, it is requested to allow present Special Civil Application.effective adjudication of the dispute, the learned trial court ought to have permitted the petitioner plaintiff to join the third party – subsequent purchaser as defendant No.3. It is submitted that the learned trial court has materially erred in holding that by allowing the amendment, the entire nature of the suit will be changed. It is submitted that in view of the declaration sought with respect to the disputed land, it cannot be said that by permitting the petitioner plaintiff to amend the plaint as prayed for, the entire nature of the suit will be changed. It is submitted that on the contrary to avoid further multiplicity of proceedings, the learned trial court ought to have allowed the petitioner to amend the plaint as prayed for. The learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Others Vs. K.K. Modi & Others, reported in (2006) 4 S.C.C. 385. Submitting accordingly, it is requested to allow present Special Civil Application.

6. Present petition is opposed by Mr.Prakash K. Jani, learned advocate appearing on behalf of the respondent No.2 –

6/10

original defendant No.2. It is submitted that as rightly held by the learned trial court , if the petitioner plaintiff is permitted to amend the plaint as prayed for, the entire nature of the suit will be changed. It is submitted that the main dispute in the suit was with respect to laying down railway line in the disputed land. Therefore, if the petitioner – plaintiff is permitted to amend the plaint permitting him to challenge the sale deed in favour of third party, the entire nature of the suit will be changed. It is also further submitted that even the petitioner plaintiff was aware of the transaction / Agreement-to-sale between the defendant Nos.1 and 2, still amendment is sought belatedly after the issues are framed. Relying upon the decision of the Hon'ble Supreme Court in the case of Aajendraprasadji N. Pansde & Another Vs. Swmi Keshavprakashdasji N. & Others, reported in 2007 (3) GLR 1872, it is requested to dismiss the present Special Civil Application. It is also further submitted that even one another suit is already filed by the petitioner plaintiff being Regular Civil Suit No. 15 of 2003 praying that the Agreement-to-sale of the land entered into by the defendant No.1 with the defendant No.2 be declared as bad in law and the petitioner plaintiff has also prayed for damages of Rs.5 Lacs towards the installation of railway line on the disputed land in which even said Natubha V. Jadeja is joined as party defendant. Submitting accordingly it is requested to dismiss the present Special Civil Application.

7. Heard the learned advocates appearing on behalf of the respective parties. respective parties.

8. At the outset, it is required to be noted that the Regular Civil Suit No. 6 of 2002 has been filed by the petitioner for declaration and mandatory injunction with respect to the land bearing Revenue Survey No.2778/1 in the year 2002. In the said suit a declaration is prayed that the defendants have no right, title or interest in the disputed land in question and that the action of the defendants in laying down the railway line in the disputed land without permission of the plaintiff be declared as illegal and unauthorised. During the pendency of the aforesaid suit, the defendant No.1 has sold the disputed land in favour of third party Natubha V. Jadeja by registered sale deed and therefore, the petitioner plaintiff submitted the amendment application requesting to permit him to Civil Suit No. 6 of 2002 has been filed by the petitioner for declaration and mandatory injunction with respect to the land bearing Revenue Survey No.2778/1 in the year 2002. In the said suit a declaration is prayed that the defendants have no right, title or interest in the disputed land in question and that the action of the defendants in laying down the railway line in the disputed land without permission of the plaintiff be declared as illegal and unauthorised. During the pendency of the aforesaid suit, the defendant No.1 has sold the disputed land in favour of third party Natubha V. Jadeja by registered sale deed and therefore, the petitioner plaintiff submitted the amendment application requesting to permit him to amend the plaint by adding para 9(a) bringing on record subsequent development of selling disputed land in favour of third party and requesting to permit him to join the said third party - subsequent purchaser as defendant No.3 who is a party in another suit being Regular Civil Suit No. 15 fo 2003 and also prayed for relief to quash and set aside the sale deed in favour of the subsequent purchaser. Considering the nature of the controversy in the suit, it cannot be said that if the petitioner plaintiff is permitted to amend the plaint as prayed for, the entire nature of the suit will be changed. On the contrary, it appears that for effective adjudication of the controversy in the suit and to avoid further multiplicity of proceedings, it will be in the interest of all that the amendment is allowed and the said third party is joined as defendant, as any relief that may be granted in the suit may also be binding upon him and to see that the suit does not become infructuous. As held by the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Others, 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 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. 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 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.cause injustice or prejudice to the other side. The Rule of amendment is essentially a rule of justice, equity and good 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. 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 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.

9. Considering above, and in the facts and circumstances of the case, it appears that the learned trial court has committed an error in dismissing application Ex.58 and refusing the petitioner plaintiff to amend the the plaint as prayed for which is mainly due to subsequent development which has taken place during the pendency of the suit on selling the disputed property to the third party. Under the circumstances, present petition deserves the case, it appears that the learned trial court has committed an error in dismissing application Ex.58 and refusing the petitioner plaintiff to amend the the plaint as prayed for which is mainly due to subsequent development which has taken place during the pendency of the suit on selling the disputed property to the third party. Under the circumstances, present petition deserves to be allowed.

10. For the reasons stated above present petition succeeds.

The impugned order dtd.17/10/2008 passed by the learned Principal Civil Judge, Mundra below application Ex.58 in Regular Civil Suit No. 6 of 2002 is hereby quashed and set aside and the application Ex.58 is allowed and the petitioner plaintiff is permitted to amend the plaint as prayed for. Rule is made absolutely. No In the facts and circumstances of the case, there shall be no order as to costs. learned Principal Civil Judge, Mundra below application Ex.58 in Regular Civil Suit No. 6 of 2002 is hereby quashed and set aside and the application Ex.58 is allowed and the petitioner plaintiff is permitted to amend the plaint as prayed for. Rule is made absolutely. No In the facts and circumstances of the case, there shall be no order as to costs.

[M.R. SHAH, J.]

rafik