ORDER : 1. The present petition under Articles 226 and 227 of the Constitution of India is filed by the petitioners for seeking following reliefs: “8.(A) Your Lordship may be pleased to issue a writ of certiorari and/or a writ in the nature of certiorari and/or any other appropriate writ, order or direction quashing and setting aside order impugned at Annexure-A to the petition dated 23rd February, 2017 passed below Exhibit 48 in Civil Suit No.5885 of 2000 partly rejecting the prayer of the petitioners qua Paragraph no.7 (a) of the amendment application (Exh.48) at Annexure-A to the present petition and Further be pleased to direct the Hon'ble Civil Court, Ahmedabad, to allow the amendment application filed by the Petitioner at Annexure-A to the petition in the proceedings of Civil Suit No.5885 of 2000 pending before Hon'ble City Civil Court at Ahmedabad qua Para no.7 (a) of the Amendment Application below exh.48 at Annexure-A to the present petition. (B) Pending the admission, hearing and final disposal of this petition, Your Lordship may be pleased to stay the further proceedings of Civil Suit No.5885 of 2000 pending before Hon'ble City Civil Court at Ahmedabad; (C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of Justice; may kindly be granted;” 2. The facts on the basis of which the present petition is submitted are that respondents herein and one Harshadlal Shamaldas Shah - original defendant No.3 had entered into agreement to sell with petitioner No.1 on 23.12.1985 with respect to property which is undivided one - third share situated in final Plot No.28 (Part) allotting in lieu of Survey No.23 (Part) being Survey No.23/2 under the Town Planning Scheme No.18 of Ahmedabad of Mouje Rajpur Hirpur, Taluka and District Ahmedabad City. It was also agreed between petitioner No.1 who is the purchaser and the respondents - sellers alongwith original defendant No.3 that said sellers will obtain peaceful and vacant possession of the property from the tenants and handover it to the petitioner No.1 i.e. purchaser. It was also agreed to cooperate the petitioner No.1 association for all kinds of necessary works and on the basis of which, the agreement to sell came to be executed on 23.12.1985, as stated earlier. It was also agreed to cooperate the petitioner No.1 association for all kinds of necessary works and on the basis of which, the agreement to sell came to be executed on 23.12.1985, as stated earlier. 2.1 It is the case of the petitioners that these respondents alongwith defendant No.3 entered into one another supplementary agreement with original defendant No.4 i.e. Kantilal Anandji Bussa who had assured to make payment to the respondents as per the agreement but then a suit came to be filed being Summary Suit No.6064 of 1992 before the City Civil Court, Ahmedabad for recovery of sale consideration with interest and in the said suit proceedings, an order came to be passed on 20.07.1994 to deposit a sum of Rs.12 Lakhs. This suit was filed by respondents alongwith one Mr.Harshad Shah the original defendant No.2 happened to be the father of respondent No.1 and husband of respondent No.2 herein. 2.2 It is further the case of the petitioners that pursuant to the said order passed by the City Civil Court, Ahmedabad in summary proceedings, the petitioner No.1 filed Civil Revision Application No.1180 of 1994 but the said Civil Revision Application came to be dismissed by this Court and the order passed by the City Civil Court came to be confirmed. On one hand, respondents have been granted decree of recovery of sale consideration whereas on the other hand, no actual willingness for execution of sale deed pursuant to the agreement to sale was visible and there was no concrete steps were taken to vacate the tenants from possession which was agreed upon. On account of this conduct on the part of respondents, the petitioner No.1 was constrained to file Civil Suit which is numbered as Civil Suit No.5885 of 2000 before the City Civil Court at Ahmedabad for seeking specific performance of agreement initially and thereafter, the petitioner No.2 who is a developer of the said property was permitted to join as plaintiff No.2 in the suit by virtue of order dated 01.02.2017 and the suit was amended copy whereof was submitted on 14.02.2017 and the same is pending for adjudication before the competent Civil Court, Ahmedabad. 2.3 The case of the petitioners is that aforesaid suit is admitted as well as contested by filing written statement by admitting one vital fact that respondents are cooperating petitioner No.1 and admitting on oath at Exh.31 precisely in paragraph Nos.5, 9, 11, 18 and 19 that possession of suit property is given to petitioner No.1 alongwith tenants and in paragraph Nos.10, 11, 12, 13, 15, 16 and 19, it was further asserted that they were given necessary cooperation to take possession from tenants and have also undertaken personal visit at the suit premises. It was also asserted and admitted that original defendant Nos. 1 to 3 are ready and willing to execute necessary sale deed in favour of plaintiff No.1 upon receipt of balance consideration since most of tenants have vacated their rooms and/or tenanted premises and the developers M/s Commercial Construction Company have taken possession and all the vacated rooms are demolished to avoid any encroachments and the remaining few tenanted rooms are likely to be vacated. However, under the influence of some antisocial elements/head strong persons, the intention of the respondents has become malice and an attempt was made to illegally take over possession of the suit property which is presently with petitioners and an attempt was made to create third party rights so as to jeopardize the interest of petitioner No.1 which may likely to result in multiplicity of proceedings. Since, that be the situation, the petitioners shown an inclination to waive the remaining obligations of respondents subject to rights available under the law and equity to the petitioners and get the conveyance deed of sale of property in favour of petitioner No.1. Accordingly, will that intention, the petitioners submitted a bank cheque in favour of the Registrar of Court as to deposit the balance consideration amount of Rs.12,50,000/- so as to see that the proper adjudication of suit can take place. As per the agreement to sale, according to the petitioners, respondents have received an amount of Rs.10,50,000/- out of Rs.18 Lakhs. As a result of this, in the amendment application, the petitioner No.1 is ready and willing to pay further amount for just and proper adjudication of the suit and so as to see that conveyance deed can be executed and looking to the averments, the Civil Court on 23.02.2017 rejected the same. As a result of this, in the amendment application, the petitioner No.1 is ready and willing to pay further amount for just and proper adjudication of the suit and so as to see that conveyance deed can be executed and looking to the averments, the Civil Court on 23.02.2017 rejected the same. As a result of this, the petitioners have filed Review Application alongwith delay condonation application, however, the same is also rejected by the Civil Court vide order dated 05.05.2017 without considering and appreciating the new development which took place during the pendency of Regular Civil Suit No.5885 of 2000 and the same was to be brought to the notice of the Court by seeking amendment in paragraphs 3.1 to 3.3 and 4.0 to 6.0. On 05.05.2017, the said application came to be rejected and since the respondents are continued to take help of head strong persons with a view to take over possession of the suit property and despite the fact that respondents have withdrawn the Execution Proceeding No.259 of 2001 and not executing sale deed in favour of petitioner No.1. As a result of this, the petitioners were constrained to submit an application below Exh.72 to offer a cheque of Rs.12,50,000/- in pursuance to the decree which was passed in Summary Suit No.6064 of 1992, so that the respondents may not create third party right but the said application came to be rejected by the Civil Court on 06.09.2017 and in these backgrounds, the legitimate rights of the petitioners are sought to be jeopardized by unruly act on the part of the respondents and left with no other alternate, the petitioners are constrained to approach this Court by way of present petition for challenging the order dated 23.02.2017 by virtue of which the amendment application which is sought to be made came to be rejected in part and also the order dismissing Review Application. 3. This petition appears to have been entertained by the Court by issuance of notice on 21.11.2017, and later on, the same has come up for consideration finally before this Court and after hearing, the present petition is taken up for final disposal with the consent of learned advocates appearing for the respective parties. 4. 3. This petition appears to have been entertained by the Court by issuance of notice on 21.11.2017, and later on, the same has come up for consideration finally before this Court and after hearing, the present petition is taken up for final disposal with the consent of learned advocates appearing for the respective parties. 4. Mr.Chirag B.Patel, learned advocate appearing on behalf of the petitioners has vehemently submitted that the order passed by the Court below is not only unjust and improper but is not inconsonance with the object under lying under Order 6 Rule 17 of the C.P.C. The purport of the object of the provision is to see that by granting amendment, there shall be no multiplicity of proceedings and here unfortunately the learned City Civil Judge has granted deletion of defendants No.3 and 4 whereas the basic pleadings which are touching to the root of the case has not been allowed to be inserted in the plaint and that has seriously prejudice the petitioners. It has been categorically submitted that it is settled position of law that whenever there is a conflict between substantial justice and technical consideration, substantial justice must be given a predominance and further it has been propounded that procedural provisions are meant to administer justice rather to thwart. As a result of this, the view taken by the learned trial Judge appearance is be too technical which deserves to be corrected. 4.1 Learned advocate Mr.Patel for the petitioners has further submitted that even from the written statement, filed by the defendants in the proceedings, has got a reference of developer and of course there is a bare denial but the issue related to it, is very much reflecting from the tenure of the written statement. Apart from that, a further assertion is reflecting in the written statement filed by defendants that the consideration issue is also practically not in serious dispute. Of course, it has been clearly asserted in paragraph No.6 of the written statement that the petitioners plaintiffs are entitled to recover a debt from not only defendants No.1 to 3 but also from defendant No.4 as well. When that be so, mere granting of amendment would not in any way prejudice either to the trial or to the defendants. 4.2 Mr. When that be so, mere granting of amendment would not in any way prejudice either to the trial or to the defendants. 4.2 Mr. Patel, learned advocate for the petitioners has further submitted that no doubt the belated amendment may not be encouraged normally but that may be a general proposition cannot be stretched to this peculiar background of fact, in which, it has been clearly borne out that the plaintiff No.2 has already been allowed to be added as party to the suit proceedings and by virtue of order dated 01.02.2017 at Exh.52, if he has been allowed to be impleaded in just February, 2017 and as such for the purpose of amendment of pleadings there may not be any objection and the learned trial Judge ought to have appreciated this material aspect. As a result of this, since error which has been committed same is required to be corrected. In so far as, the order which has not granted the relief contained in paragraph 7(a). 4.3 Mr.Patel, learned advocate for the petitioners has further submitted that there is no blanket proposition that no amendment can be allowed irrespective of its significance after the trial has commenced. Of course, the statutory provision has been made but that has been considered by the Apex Court and in a given case, the amendments have been allowed. That being the position, there is hardly any reason to allow this impugned order in so far as it relates to paragraph 7(a), which has been denied. 4.4 To strengthen the submissions, Mr.Chirag B.Patel, learned advocate appearing for the petitioners has pressed into service of two decisions of the Apex Court, which are in the case of Mount Mary Enterprises versus Jivratna Medi Treat Private Limited reported in (2015) 4 SCC 182 and in the case of Mohinder Kumar Mehra versus Roop Rani Mehra and others reported in (2018) 2 SCC 132 and by referring to the relevant observations contained in such decisions, a request is made to allow the petition by granting relief as prayed for. 5. As against this, Mr.Dipen Desai, learned advocate appearing on behalf of contesting respondent No.1 has opposed the petition on the ground that this being a petition under Articles 226 and 227 of the Constitution of India, the view taken by the learned trial Judge may not be allowed to be substituted. 5. As against this, Mr.Dipen Desai, learned advocate appearing on behalf of contesting respondent No.1 has opposed the petition on the ground that this being a petition under Articles 226 and 227 of the Constitution of India, the view taken by the learned trial Judge may not be allowed to be substituted. It has been further submitted that in a suit proceedings, which are filed in the year 2000, the amendment after these many years may not be allowed to be incorporated and the same has the effect of further derailing the proceedings from being tried. According to Mr.Desai, learned advocate, the main object of provision is to discourage the unnecessary delay of the proceedings and as such since this amendment which has been sought by virtue of application at Exh.48 is in the year 2016, such belated amendment may not be allowed. 5.1 Even otherwise, the pleadings are completed and as such at this stage of the proceedings such amendment rightly has not been granted by the learned trial Judge. According to Mr.Desai, learned advocate, the learned trial judge has assigned the proper reasons which, in his respectful submission, does not call for any interference. That being the position, the petition being devoid of merit deserves to be dismissed. 6. Having heard learned advocates appearing for the respective parties and having gone through the material on record, it appears that by a brief order, learned trial Judge has partially granted application but the main object of insertion of pleadings has not been allowed which are touching to the root of controversy. The learned trial Judge has not appreciated the fact that there is a reference in the written statement about the plaintiff and developer entering in transaction in question. Of course, a general denial is made but none the less, the insertion which is being sought in the pleadings is encircling around the same and that eventuality in the subsequent form has taken place after filing of the suit. There is a further error committed by the learned trial Judge that the plaintiff No.2 has been allowed to be inserted in the proceedings by virtue of specific order at Exh.52 on 01.02.2017 i.e. just prior to the impugned order and there was hardly any justification for the trial Judge to discard the request made in Exh.48. There is a further error committed by the learned trial Judge that the plaintiff No.2 has been allowed to be inserted in the proceedings by virtue of specific order at Exh.52 on 01.02.2017 i.e. just prior to the impugned order and there was hardly any justification for the trial Judge to discard the request made in Exh.48. In addition to this, only reason which is reflecting is that the pleadings are part of the proceedings and it can be read at the time of the judgment, and therefore, the prayer is required to be rejected. This line of reasoning is not understandable in view of the fact that on one breath the learned trial Judge has opined that whatever submissions submitted by defendants No.1 to 3 vide Exh.31 cannot be permitted to be inserted in the plaint as their admission whereas on the other hand, the permission has been granted to delete the defendants No.3 and 4 from the proceedings and with respect to the clear assertion which has been made about subsequent development after filing of the suit is not allowed to be amended. This appears to be evasive exercise of jurisdiction which in considered opinion of this Court is not permissible. The averments which are sought to be introduced are clearly set out in paragraphs 4, 5 and 6 in the application which are certainly subsequent to the filing of the suit and of the recent nature i.e. just before passing of an order. As a result of this, there was hardly any reason for the learned trial Judge to discard such request. The amendment which is sought in the pleading, which is requested, is reproduced hereinafter: “4. As the Defendant owners have failed to recover amount from the Defendant No.4 Kantibhai and the Execution/Darkhast is withdrawn by the Defendant owners, the name of the Defendant No.4 may be deleted. 5. It is came to the knowledge of the Plaintiff while taking search of the Government records on 14-10-2016 that the Defendant No.3 Harshadbhai Shamaldas Shah is expired on 20-10-2012 and his 1/3 share of the Suit Property has been released in favour of the Defendant No.2 Smit. Shubhadraben Harshadbhai by his legal heir being son and daughters named (i) Shri Rajendra Harshadlal, residing at B/31 Ishita Apartment, Near Commerce Six Raod, Navrangpura, Ahmedabad-380 009, (ii) Mrs. Shubhadraben Harshadbhai by his legal heir being son and daughters named (i) Shri Rajendra Harshadlal, residing at B/31 Ishita Apartment, Near Commerce Six Raod, Navrangpura, Ahmedabad-380 009, (ii) Mrs. Jyotiben Prakashbhai Shah, residing at 10/A Shreyas Colony, Stadium Char Rasta, Navrangpura, Ahmedabad-380 009, (iii) Mrs. Amitaben Mukeshbhai Shah residing at 501 Shukhsagar Flat, Near Ishita Tower Navrangpura, Ahmedabad-380 009, and Mrs. Paulomiben Jighneshbhai Shah residing at A/1 Aradhana Residency, Naranpura Municipal School, Sardar Patel Colony Road, Naranpura, Ahmedabad-380 013 and Mrs. Purnima Kaushikbhai Shah, residing at 27/55, Eakta Apartment, Naranpura, Ahmedabad-380 013 by a Registered Release Deed registered at a serial No.146 dated 07-01-2015 and a mutation entry has been mutated in the revenue records and deceased name is deleted for which the Plaintiff submits the copy of the Registered Release Deed dated 07-01-2015 and a further Deed of Rectification executed and registered at serial No.3315 dated 15th April, 2016 and copy of 7/12 with the List. Thus, the Defendant No.2 become owner of the 2/3 share of the Suit Property. It is submitted that the main two legal heir of the Decd. Defendant No.3 being Defendant No.1 and 2 are already joined. Therefore, the legal heir of the Decd. Defendant No.3 are not required to join. It is pertinent to note that the Defendant's advocate has not informed or a passed a Purshis before the Hon'ble court that they are not now advocate of the Defendant No.3 on his death. 6. At the time of the execution of the conveyance Deed of Sale of the Suit Premises in Plaintiff's favour on depositing the balance consideration amount in this Hon'ble Court, a Court Commissioner may be appointed to inspect the Suit premises and submit a report thereof with the map including the remaining rooms having in possession of the tenants with name and details of the demolished structures. 7. 7. Additionally, from the pleadings, it is also reflecting that these defendants who have now chosen to oppose the amendment have in categorical terms admitted that they have received some amount of consideration from the plaintiff and one step which is surprisingly noticed is that the plaintiff had to give a public notice in the daily newspapers in the month of August, 2016 as some unauthorized persons were trying to grab the possession from the plaintiff which is undisputedly handed-over to him by virtue of the agreement and in that process surprisingly defendant No.1 has filed a caveat application, which circumstance is sufficient enough to indicate that interest of justice demands that to have ultimate outcome in a just and proper manner these averments which are sought to be amended are expedient in the interest of justice for the purpose of fair trial. 8. In above view of the matter and having gone through the relevant paragraphs of written statement, which has been filed by the defendant, which is part of the record, this Court is of the considered opinion that to deny this part of amendment in the proceedings would seriously prejudice the plaintiff put also defeat the very object of Order 6 Rule 17 of the C.P.C. Hence, in the larger interest of justice and to have a fair and proper adjudication of the suit proceedings, this amendment deserves to be allowed in toto. That being the position, the impugned order in opinion of this Court is required to be corrected. 9. Additionally, this Court is well supported by the proposition of law laid down by the Apex Court in the earlier decisions which have been brought to the notice of this Court by learned advocate for the petitioners and since the Court has taken in aid such observations, the Court deems it proper to reproduce the same in present order. In the case of Mount Mary Enterprises (supra) a decision delivered by the Apex Court is relevant to the issue, which reads as under: “10. With regard to amendment of plaint, the following observation has been made by this Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by LRs. (2008) 8 SCC 511 : "16. With regard to amendment of plaint, the following observation has been made by this Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by LRs. (2008) 8 SCC 511 : "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others (1957) 1 SCR 595 which still holds the filed, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs." 10. One further decision of recent time which has been brought to the notice of this Court which is in the case of Mohinder Kumar Mehra (supra), which is delivered by the Apex Court, in which also, the proviso to the Order 6 Rule 17 of the C.P.C. has been considered and analyzed by the Court and the Apex Court has permitted amendment in the proceedings. So few of the observations, which are contained in paragraphs 22, 23 and 24 since are relevant, the Court deems it proper to reproduce hereinafter: “22. The Proviso to Order VI Rule 17 prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could led evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that the plaintiff’s case is that parties has led evidence even on the amended pleadings and plaintiff’s cases was that in view of the fact that the parties led evidence on amended pleadings, the allowing the amendment was mere formality. The defendant in no manner can be said to be prejudiced by the amendments since plaintiff led his evidence on amended pleadings also as claimed by him. 23. This Court in Chander Kanta Bansal Vs. Rajinder 16 Singh Anand, (2008) 5 SCC 117 has noted the object and purpose of amendment made in 2002. In Para 13, following has been held:- “13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.” 24. Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present case no prejudice can be said to have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We thus are of the view that looking to the purpose and object of the Proviso, present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso.” 11. This Court has an advantage of one another observations made by the Apex Court in a decision in the case of Banwari Lal (dead) by Legal Representatives and Another versus Balbir Singh reported in (2016) 1 SCC 607 , wherein it has been in terms provided that procedural provisions are meant to administer justice rather to thwart and whenever there is any conflict between substantial justice and technical consideration, substantial justice must be given a predominance. Keeping this salutary principles propounded by the Apex Court in mind, this Court is of the considered opinion that a case is made out by the petitioners to call for interference. Keeping this salutary principles propounded by the Apex Court in mind, this Court is of the considered opinion that a case is made out by the petitioners to call for interference. Accordingly, the petition stands allowed in terms of prayer 8(A) and amendment application at Exh.48 stands allowed and the learned trial Judge is directed to appropriately consider the same while adjudicating the suit proceedings which are requested to be expedited. 12. With these observations, petition stands allowed.