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2024 DIGILAW 1022 (GUJ)

Lalitkumar Madanlal Gupta v. Savitaben And Sons

2024-04-25

SANDEEP N.BHATT

body2024
ORDER : 1. The present petition is filed by the present petitioner – original plaintiff by challenging the impugned order dated 15.09.2023 passed below Exh.87 application in H.R.P. Civil Suit No.317 of 2015 by the learned Judge, Small Cause Court Ahmedabad, Court No.6, whereby the same was allowed, which was filed by the plaintiff for amendment. 2. Brief facts of the case as per the case of the petitioner in this petition are that the respondents, namely, Gunvantbhai Raval, who was the tenant of the petitioner in respect of the property situated at Ahmedabad city, Usmanpura, Mouje Wadaj, TP Scheme No.15, Final Plot No.18, Shree Niketan Cooperative Housing Society, Sub-Plot No.2, was given on rent. Since the deceased Gunvantbhai Raval did not pay the municipal tax and other amount of rent, he became tenant in arrears and, therefore, the present petitioner has filed HRP Civil Suit No.317 of 2015 before the Small Causes Court, Ahmedabad against the present defendants on 14.5.2015. It is further the case of the petitioner in this petition are as such that originally, the suit was filed against Savitaben & Sons (Sandip Provision Raval Store), partner Gunvantbhai service. Upon summons on 30.09.2015, the written statement was filed and issues has been framed. Thereafter, the petitioner has submitted the deposition on 7.5.2016 and cross-examination of the petitioner was over on 11.1.2017. Thereafter, on 14.4.2017, said Gunvantbhai Raval passed away and on 18.7.2017, the legal heirs of deceased Gunvantbhai Raval had been brought on record, who are the defendants and respondent Nos.1/1 to 1/4 herein. The respondent No.1/1 is the widowed wife, respondent No.1/2/3 are the sons and respondent No.1/4 is married daughter. It is further the case of the petitioner in this petition are as such that after the demise of the defendant Gunvantbhai Raval and the legal heirs had been brought on record, and on 25.6.2018, the petitioner filed an application contending that two issues are to be added to the issues already framed and, therefore, an application was filed. To the aforesaid application, no reply was filed and on 25.9.2018, the same had been rejected. To the aforesaid application, no reply was filed and on 25.9.2018, the same had been rejected. It is further the case of the petitioner in this petition are as such that one of the suggested issues was already framed vide Issue No.5, and so far as the second issue which was to be re-cast according to the petitioner, it observed that there is no such averment and amendment application is preferred and, therefore, such issue cannot be framed at a particular stage. Therefore, such order dated 25.9.2018 was not challenged. In the meanwhile, the defendants filed an application vide Exh.45 and sought to produce so many new documents, which were never produced during the lifetime of deceased Gunvantbhai Raval. The petitioner objected for production of such documents which had straightway been exhibited by the court below which was the subject matter of challenge before this Court by filing SCA No.3163 of 2020, which came to be withdrawn upon the observations made by this Court vide order dated 5.2.2020. Thereafter, on 4.10.2020, further deposition of the petitioner was filed as legal heirs were joined to the proceedings and the cross-examination thereof is to commence. The examination-in-chief submitted on 4.10.2020 has been exhibited vide Exh.81. Thereafter, on 20.06.2022, the present petitioner filed an application for amendment under Order 6 Rule 17 of the CPC, to which no reply has been filed. Consequently, by order dated 15.9.2023, that application was reject. Being aggrieved by and feeling dissatisfied with the order dated 15.9.2023 passed by the learned Judge, Small Cause Court Ahmedabad, Court No.6, below application for amendment Exh.87 in HRP Suit No.317 of 2015, the present petition has been preferred. 3. Heard Mr. Baiju Joshi, the learned counsel for the petitioner and Mr. Vasim Mansuri, the learned counsel for the respondents. 4. Mr. Baiju Joshi, the learned counsel for the petitioner has submitted that the impugned application has been filed under Order VI Rule 17 of the C.P.C. for amendment of some assertions as required, which is otherwise not changing nature of the suit, which can be considered as an additional ground. The same has already been sought in the plaint under the provisions of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act"). The same has already been sought in the plaint under the provisions of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act"). Furthermore, he has submitted that the court below has wrongly taken into consideration the order, which pertains to deletion of issue. Furthermore, he has submitted that the court below has failed to appreciate that after submitting the examination-in-chief below Exh.41, the original defendant passed away and thereafter, the heirs of the deceased litigant were brought on record and vide Exh.81, again examination-in- chief has been submitted along with supportive documentary evidence. Such aspect has totally been ignored by the court below. Furthermore, he has submitted that if the amendment is carried out as prayed in the plaint, no serious prejudice would be caused to the other party as such amendment can be granted at any stage of trial. In support of this submissions, he has relied upon the judgment of the Hon’ble Apex Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another reported in 2022 (0) AIJEL-SC 69771, as well as judgment of this Court rendered in Special Civil Application No.9254 of 2022 dated 26.02.2024. In view of the above, he has prayed to allow the present petition. 5. Per contra, Mr. Vasim Mansuri, the learned counsel for the respondents has submitted that although he has not filed a appearance in this case, he has argued in cognate matter pertaining to this petition and has also filed an affidavit-in-reply in the present matter. He has submitted that impugned order passed by the trial court is just and proper. Furthermore, he has submitted that the trial court has discussed in detail that the plaintiff has already filed an application for adding two issues vide Exh.34. The said application was rejected by the trial court vide order dated 25.9.2019 by giving reasons that the plaintiff has not prayed such amendment in the grounds as pleadings for such additional issues. Furthermore, he has submitted that merely by tendering the examination-in-chief, making allegations in the examination-in-chief about non-user in absence of any pleading is required to be discarded. Hence, the amendment, which is sought at the belated stage without giving any proper explanation is required to be rejected. Furthermore, he has submitted that merely by tendering the examination-in-chief, making allegations in the examination-in-chief about non-user in absence of any pleading is required to be discarded. Hence, the amendment, which is sought at the belated stage without giving any proper explanation is required to be rejected. Accordingly, the trial court has rightly exercised the powers by considering the provisions of Order VI Rule 17 and has rejected the impugned application. In view of the above, he has prayed to dismiss the present petition. 6.1 I have considered the rival submissions made at the bar. I have also taken into account that the proposed amendment is sought by way of filing application below Exh.87 to address some of the claims that need to be included in the plaint, specifically concerning the non- user of the premises by the heirs of the original defendant, who were joined during the pendency of the proceedings. 6.2 In this backdrop, the issues were framed at Exhibit 13, including issue No. 5. Subsequently, the plaintiff submitted an application at Exhibit 34 for addition to two issues, which was rejected because the trial court determined that issue No. 5, as framed in Exhibit 13, would sufficiently address the concerns that the plaintiff sought to add. Following this, the present application for amendment was filed by the plaintiff. At the same time, the respondents filed an application to delete issue No.5, which was granted by the trial court. Consequently, the trial court also denied the plaintiff's application for amendment, leading to the filing of the present petition. 6.3 This Court has allowed Special Civil Application No.18287 of 2023 today by separate order by setting aside the order of the trial court regarding deletion of issue. 6.4 Considering this aspect and taking into account the fact that nature of the amendment, which is sought, is regarding non-user of the suit premises by the heirs of the defendants Such amendment is sought against the heirs of the original defendant. The suit is filed against the original defendants. At that point of time, the issues No.5 was already framed regarding non- user. Considering the provisions of the Rent Act, it transpires that the suit can be decreed on any of the grounds provided under Section 12 or 13 of the Rent Act, if requirement is satisfied and proved by the plaintiff. At that point of time, the issues No.5 was already framed regarding non- user. Considering the provisions of the Rent Act, it transpires that the suit can be decreed on any of the grounds provided under Section 12 or 13 of the Rent Act, if requirement is satisfied and proved by the plaintiff. Therefore, when the suit is filed, also another ground for the amendment which is sought by way of adding one more ground does not amount to any illegality or irregularity. On the contrary, by granting such amendment, the trial court can permit the parties to lead the evidence, and thereafter, the trial court can come to the correct conclusion. 6.5 It is required to refer the judgment which is relied by the learned advocate for the petitioner, more particularly, in the case of Life Insurance Corporation of India (supra), specifically, paragraph No.70 is relevant, as under: “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) 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. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) 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). (iv) A prayer for amendment is generally required to be allowed unless (i) 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, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) 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. (vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) 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. (x) 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. (xi) 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. 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)” 6.6 It is relevant to refer the provisions of Order VI Rule 17 of the C.P.C., as under: “17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such 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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 6.7 Considering Order VI, Rule 17 of the Civil Procedure Code (C.P.C.), along with the nature of the amendment sought by the present petitioner, and taking into account other developments—specifically, that issue No. 5 has already been framed to address the same subject matter— I am of the opinion that the trial court has erred in rejecting the petitioner's application for amendment. Therefore, the impugned order dated 15 September 2023, passed in H.R.P. Civil Suit No. 317 of 2015, by the learned Judge of the Small Cause Court Ahmedabad, Court No. 6, requires this Court's intervention through its supervisory jurisdiction under Article 227 of the Constitution of India. This intervention is necessary because the impugned order is apparently illegality and irregularity, which will certainly jeopardized the parties' rights and contentions. This outcome cannot be sustained in the eyes of the law, especially when the plaintiff has already claimed possession on other grounds under the Rent Act, and the issue regarding the same amendment is framed as issue No.5 in the issues framed by the trial court. Now, in view of the fact that subsequently heirs of the original defendant are also added. Hence, such amendment is required to be allowed. Now, in view of the fact that subsequently heirs of the original defendant are also added. Hence, such amendment is required to be allowed. Hence, the present petition is required to be added. 7. As a result, the present petition is allowed. 8. The impugned order dated 15.09.2023 passed below Exh.87 application in H.R.P. Civil Suit No.317 of 2015 by the learned Judge, Small Cause Court Ahmedabad, Court No.6 is hereby quashed and set aside.