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2018 DIGILAW 798 (GUJ)

Chandrakant Jayantilal Doshi v. Navrachana Education Society

2018-06-28

PARESH UPADHYAY

body2018
JUDGMENT Paresh Upadhyay, J. 1.1 Challenge in these two petitions is made by the original defendants and plaintiffs respectively to, two different orders passed by the Trial Court (3rd Additional Civil Judge, Vadodara) dated 18.01.2017 below application Exh.135 and dated 18.02.2017 below application Exh.90, in Regular Civil Suit No. 550 of 2012. 1.2 By the impugned order dated 18.01.2017, the trial Court has allowed amendment application Exh.135, filed by the plaintiffs. The said order is challenged by the defendants before this Court. 1.3 By the impugned order dated 18.02.2017, the trial Court has allowed the application Exh.90, filed by the defendants and ordered to send documents Exh.143/1 & 143/2 to handwriting expert of FSL at Gandhinagar. The said order is challenged by the plaintiffs before this Court. 2. Heard learned advocates. 3. At the outset, it is noted that learned advocates for the respective parties have addressed this Court at length. Merits of the suit are also addressed at length before this Court. Since the controversy in these two petitions is only to the limited extent as noted above, this Court has thought it fit not to make any observation qua merits of the matter. Only those submissions are noted and taken into consideration by this Court, which are necessary qua deciding the point at issue in these two petitions. Other arguments on merits are not gone into by this Court. 4…. 4.1 Mr. R.R. Marshall, learned senior advocate with Mr. S.P. Majmudar, learned advocate for the petitioners of Special Civil Application No.4273 of 2017 - original defendant, has submitted that the impugned order dated 18.01.2017 is contrary to the provisions of Order VI Rule-17 of the Code of Civil Procedure. It is submitted that the amendment as sought for by the plaintiff would change the nature of the suit. Further it is introducing new facts and made with mala-fide intention to fulfill the lacuna in plaint. Learned senior advocate for the petitioners has addressed this Court at length and has taken this Court extensively through the paper book to contend that interference of this Court is required in the impugned order. It is submitted that Special Civil Application No.4273 of 2017 be allowed. In support of his submissions, learned senior advocate for the petitioners has relied upon the following authorities. (i) Alkapuri Co-operative Housing Society Ltd., Vs. Jayantibhai Naginbhai, (2009) 2 GLH 609. (ii) Ramanlal Ambalal Patel Vs. It is submitted that Special Civil Application No.4273 of 2017 be allowed. In support of his submissions, learned senior advocate for the petitioners has relied upon the following authorities. (i) Alkapuri Co-operative Housing Society Ltd., Vs. Jayantibhai Naginbhai, (2009) 2 GLH 609. (ii) Ramanlal Ambalal Patel Vs. Hina Industries, (1993) 1 GLR 820 . 4.2 On the other hand, Mr. Shalin Mehta, learned senior advocate with Mr. Sachin Vasavada, learned advocate for the respondents original plaintiffs, has submitted that the trial Court has not committed any error while passing the impugned order. It is submitted that this petition be dismissed. In support of his submissions, learned senior advocate has relied upon the decision of the Supreme Court of India in the case of Mohinder Kumar Mehra Vs. Roop Rani Mehra, (2018) 2 SCC 132 . 5…. 5.1 Mr. Shalin Mehta, learned senior advocate appearing for the original plaintiffs as the petitioners in Special Civil Application No.5018 of 2017 has submitted that the Trial Court fell in error by passing the impugned order dated 18.02.2017. Reference is also made to the earlier order dated 31.12.2016. It is submitted that the Trial Court ordered the documents to be send to FSL even without forming an independent opinion and without following the principle of natural justice. Learned senior advocate for the petitioners has addressed this Court at length and has taken this Court extensively through the paper book to contend that interference of this Court is required in the impugned order. It is submitted that Special Civil Application No.5018 of 2017 be allowed. 5.2 On the other hand, Mr. R.R. Marshall, learned senior advocate for the respondents has submitted that the trial Court has not committed any illegality while passing the impugned order. It is submitted that this petition be dismissed. 6. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 6.1 So far the order passed by the Trial Court below application Exh.135 is concerned, the operative part thereof reads as under. "....Heard the learned advocate of plaintiff and defendant. Also gone through the provision of Amendment. 6. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 6.1 So far the order passed by the Trial Court below application Exh.135 is concerned, the operative part thereof reads as under. "....Heard the learned advocate of plaintiff and defendant. Also gone through the provision of Amendment. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The purpose and object of Order 6 rule 17 of CPC is to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts, the Court should follow the liberal approach in case of pre-trial amendments. It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a plaint is really the discretion of the Court. Looking to the above observation, I pass the following order. Order Amendment is hereby allowed. Amendment should be done within a period of 14 days." 6.2 So far challenge to the above order (in Special Civil Application No.4273 of 2017) is concerned, this Court finds that, the Trial Court has not committed any error by allowing the above amendment. On the basis of material placed before it, the Trial Court is of the opinion that permitting the amendment would be just and proper for proper adjudication of the suit. The same need not be interfered with by this Court. Special Civil Application No.4273 of 2017 therefore needs to be dismissed. 6.3 So far the order passed by the Trial Court below application Exh.90 is concerned, the operative part thereof reads as under. "......From the records as well as the application there is a dispute regarding signature of Thakorbhai Gordhanbhai Patel. Hence, I pass the following order in continuation of the order passed as on 31.12.2016. 6.3 So far the order passed by the Trial Court below application Exh.90 is concerned, the operative part thereof reads as under. "......From the records as well as the application there is a dispute regarding signature of Thakorbhai Gordhanbhai Patel. Hence, I pass the following order in continuation of the order passed as on 31.12.2016. ORDER Document regarding disputed signature of Thakorbhai Gordhanbhai Patel produced by the Ld. Adovcate of the Plaintiff vide mark-105/1 and registered agreement to sell produced by the Ld. Advocate of the Defendant wherein signature of Thakorbhai Gordhanbhai Patel vide Ex.-143/1, 143/2 ordered to be sent to the handwriting expert FSL at Gandhinagar to verify the same at the cost of the applicant/defendant. Original document mark 105/1, Ex.143/1; Ex.143/2 to be went to handwriting expert as per the rules thereof after depositing the first amount of the applicant. And it is directed to the handwriting expert to report related to the same withing period of 30 days. Certified copies of the original document of the mark-105/1, 143/1, 143/2 has to be kept in records. Defendant is hereby directed to deposit Rs.20, 000/-." 6.4 So far challenge to the above order (in Special Civil Application No.5018 of 2017) is concerned, it is noted that the Trial Court has, in its wisdom, found it necessary to take assistance from the Forensic Expert. The Trial Court can not be said to have committed any error by doing so. The same does not call for any interference. Special Civil Application No.5018 of 2017 also, therefore needs to be dismissed. 7. It is already noted above that, learned advocates for the respective parties have addressed this Court at length. Merits of the suit are also addressed at length. However, the controversy in these two petitions is only to the limited extent as noted above, this Court has thought it fit not to make any observation qua merits of the matter and therefore those submissions are not reflected in this order. 8. It is noted that, the contesting parties have a throughout, kept the litigation alive, by filing some proceedings before different forums, whether maintainable or otherwise. It is a matter of record that, number of litigations have taken placed by this time between the parties. 8. It is noted that, the contesting parties have a throughout, kept the litigation alive, by filing some proceedings before different forums, whether maintainable or otherwise. It is a matter of record that, number of litigations have taken placed by this time between the parties. Reference can be made to the order dated 17.03.2017 recorded by this Court on Special Civil Application No.16792 of 2016, which was filed by the plaintiffs, wherein the legality of some orders passed by the Appellate Court below, interfering in the order of the Trial Court, were challenged. Being aggrieved by the disposal of the said petition by the learned Single Judge of this Court, the plaintiffs thought it proper to avail a remedy of an intra-court Appeal before the Division Bench of this Court (being Letters Patent Appeal No.647 of 2017), on which, after getting the protection and enjoying it, it was subsequently conceded before the Supreme Court (in Special Leave to Appeal (C) No.14358 of 2017) that, the said intra-court appeal before the High Court was not maintainable. 9. For the reasons recorded in Para: 6 above, both these petitions are dismissed. 10. After the pronouncement of this order, Mr. Sachin Vasavada, learned advocate for the petitioners of Special Civil Application No.5018 of 2017 (plaintiffs) has prayed for stay of this order. Considering the totality, this request is refused.