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SCA/944720/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9447 of 2008
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GOVINDBHAI
CHATURBHAI PATEL & 2 - Petitioner(s)
Versus
RAMBHAI
CHATURBHAI PATEL - Respondent(s)
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Appearance
:
MR
RAMNANDAN SINGH for
Petitioner(s) : 1 - 3.MS ABHA B MAKWANA for Petitioner(s) : 1 - 3.
MR
BK DAMANI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/09/2008
ORAL
ORDER
Heard
the learned advocates for the parties for final disposal of the
petition.
Petitioners
are the original defendants. Respondent is the original plaintiff.
He has instituted Civil Suit No.2308 of 1988 before City Civil
Court, Ahmedabad. Nearly 20 years after the institution of the said
suit, the respondent-plaintiff filed application Ex.205 seeking
amendment in the plaint. This application came to be allowed by the
learned Judge by the impugned order dated 14.5.08.
Amendment
is opposed by the petitioners mainly on following grounds:-
That
the amendment application was filed belatedly. The suit was filed in
the year 2008. The amendment application was filed in January 2008.
In the meantime, the defendants had filed written statement and
trial had also commenced.
That
the learned Judge allowed the amendment without recording any
reasons despite stout opposition from the petitioners.
It
was further contended that the amendment otherwise also could not
have been granted. It was pointed out that in the plaint itself that
the plaintiff had stated that the suit property is of the joint
ownership of the plaintiff and defendant No.1. Through the
amendment, the plaintiff wanted to amend the prayer clause praying
inter alia that the property in question was of his exclusive
ownership. It was thus contended that the nature of the suit
completely changes with the amendment and such amendment could not
have been granted.
Learned
advocate Shri Damani for respondent-original plaintiff, however,
opposed the petition and contended that there is voluminous evidence
to show that the plaintiff was the owner of the property. The
defendants have no documents or any other proof to show their
ownership rights. He submitted that the amendment should be liberally
granted particularly when the suit was instituted prior to the
amendment in Civil Procedure Code in 2002.
Having
heard the learned advocates appearing for the parties and having
considered the material on record, I find that the learned Judge
committed error in granting the amendment. Upon perusal of the order
under challenge, it can be clearly seen that no reasons whatsoever
have been stated for accepting such amendment application at such a
belated stage. Learned Judge has also not given any reasons to
overcome the opposition of the defendants that granting of such
amendment would change the nature of the suit. Even otherwise, I
find that the amendment could not have been permitted. In the suit,
the plaintiff had stated, inter alia, that the suit property is of
the ownership of the plaintiff and defendant No.1. Through the
amendment application, a prayer is sought to be added for the
declaration that the plaintiff is the exclusive owner of the suit
property. This would certainly change the nature of the suit and the
amendment of such a nature at such a belated stage could not have
been granted.
In
the result, the petition is allowed. The impugned order dated
14.5.2008 is quashed. The petition stands disposed of accordingly.
(Akil Kureshi, J.)
(vjn)
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