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SCA/1150920/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11509 of 2008
=========================================================
MUNSHI
MUSTAK AHMED ABDUL RAHIM - Petitioner(s)
Versus
VITHALBHAI
LALJIBHAI MARTHAK - Respondent(s)
=========================================================
Appearance :
MR
HARSHIT S TOLIA for Petitioner(s) : 1,MR PARTH S
TOLIA for Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 16/09/2008
ORAL
ORDER
1. Heard
the learned advocate for the petitioner.
2. Petitioner
has challenged an order dated 26.06.2008 passed by the learned
Additional Civil Judge, Junagadh allowing application Exh.46 filed by
the plaintiff present respondent in Regular Civil Suit No. 142 of
2005. By the said order, the learned Judge was pleased to permit
amendment of the plaint as prayed for in application Exh.46. In the
said application, it is stated, inter alia, that the plaintiff had
filed the suit on 14.06.2005 and notice thereof was served on the
defendant at 06:30 in the evening of the same day. The Court
Commissioner was to draw the Panchnama on 15.06.2005 in the morning.
After service of notice, but before drawing of the Panchnama, the
defendant has illegally by taking law in his hands broken a 6 ft.
door and had damaged the belongings of the plaintiff in order to
create evidence that the possession of Vada is with the
defendant.
On
account of the above events, the plaintiff sought to add certain
additional prayers in the pending suit for a declaration that the
defendant is not entitled to create hindrance in the plaintiff’s Vada
land and further that the status-quo ante be restored as obtained on
14.06.2005 when the suit was filed.
It
may be noted that both the above prayers are sought to be added in
the main suit and are in the nature of final relief. It is this
amendment which the learned Judge granted by the impugned order.
3. It
is not in dispute that so far the issues have not been framed. Grant
of amendment before commencement of trial is normally considered
liberally, particularly, when by granting such an amendment, the
Court does not permit the plaintiff to change the nature of the suit
but in fact avoids duplication of litigation and multiplicity of
proceedings. When I find that the amendment was necessitated on
account of certain events which took place after filing of the suit,
I am of the opinion that the learned Judge committed no error in
granting such an amendment. It is true that there was some delay on
the part of the plaintiff in seeking such amendment and the Court
perhaps would have been justified in awarding cost to the defendant
while still granting the amendment. However, only on this score, it
would not be appropriate to entertain this petition, particularly,
when admittedly the trial had not commenced.
4. Learned
advocate for the petitioner, however, submitted that by granting of
amendment, the very nature of the suit gets changed. He further
submitted that the plaintiff had prayed for mandatory injunction for
restoration of status-quo ante which came to be turned down by the
Trial Court while rejecting application Exh.5 as well as application
Exh.22 by a common order and that such order has been confirmed by
the District Court also. He, therefore, submitted that the present
amendment cannot be allowed.
5. I
am afraid neither of two contentions can be accepted. I do not find
that by permitting the plaintiff to amend the suit, nature of suit
changes. As noted, such amendment was necessary to bring on record
certain events which according to the plaintiff took place after
filing of the suit. Secondly, the
Trial Court dealt with the prayers of the plaintiff for status-quo
ante by way of interim mandatory relief. Non-granting of such
relief cannot disentitle the plaintiff from amending the suit and
pursuing such a prayer by way of final prayer.
6. In
view of the above observations, the petition is dismissed. Needless
to say that suit will be decided unmindful of the observations made
hereinabove and in any case, I have not expressed any opinion about
the validity of the prayer added by the plaintiff through the
amendment.
(Akil
Kureshi, J.)
mrpandya*
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