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SCA/28987/2007 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 28987 of 2007
==========================================
ARVINDBHAI
AMBALAL PATEL & 1 - Petitioner(s)
Versus
PRAVINCHANDRA
TRIKAMLAL & 3 - Respondent(s)
==========================================
Appearance
:
MR DHAVAL D
VYAS for Petitioner(s) : 1 - 2.
MR MAULIK G
NANAVATI for Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for
Respondent(s) : 3 - 4.
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/07/2008
ORAL
ORDER
1. By way of this petition,
under Article 227 of the Constitution of India, the
petitioners-original plaintiffs have prayed for an appropriate writ,
order or direction and to quash and set aside the order dated
28/09/2007 passed by the learned Chamber Judge, City Civil Court,
Ahmedabad below Exh. 39 in Regular Civil Suit No. 2455/2004
dismissing the said application submitted by the petitioners to amend
the plaint by making certain averments and for declaration that the
condition in the agreement with respect to parking space is null and
void and is illegal.
2. At the outset, it is
required to be noted that the suit was filed by the
petitioners-original plaintiffs. The same was for seeking permanent
injunction restraining the respondents-original defendants from
causing any obstruction to the petitioners-original plaintiffs and
their family members in parking vehicles and to use the passage in
the compound admeasuring 306 sq yards of sub-plot no. 9B using the
underground water tank and water pump.
3. Now by amendment, the
petitioners-original plaintiffs have proposed to amend the suit and
has prayed for declaration that condition no. 4 of the sale deed
dated 31/03/1983 is illegal and not binding to the
petitioners-original plaintiffs.
4. While considering the
amendment application, the learned trial Court has observed that the
proposed amendment, being not necessary to determine the real issue
and controversy between the parties, and even otherwise is likely to
change the very nature of the suit and accordingly has dismissed the
said application.
5. This Court is in complete
agreement with the reasoning given by the learned trial Court with
respect to the change of the very nature of the suit, if the
amendment application is allowed. No interference of this Court is
required in the present Special Civil Application in exercise of
powers under Article 227 of the Constitution of India. Hence the
petition is dismissed. Notice is discharged.
(M.R.
SHAH, J.)
siji
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