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SCA/8445/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8445 of 2010
=========================================================
AVINASHBHAI
MANGALBHAI PATEL - Petitioner(s)
Versus
MAHENDRABHAI
MANGALBHAI PATEL - Respondent(s)
=========================================================
Appearance
:
MR
HARSHADRAY A DAVE for
Petitioner(s) : 1,
MR PM LAKHANI for Respondent(s) : 1,
MRS RP
LAKHANI for Respondent(s) : 1,
MR SANDEEP R LIMBANI for
Respondent(s) : 1,
MS. DIMPLE L. JOSHI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 31/03/2011
ORAL
ORDER
1. The
petitioner herein has challenged the order dated 14.05.2010 passed by
the Civil Court (Senior Division), Vadodara in Regular Civil Suit No.
81 of 2005 below Ex. 49 whereby the application was rejected.
2. It
is the case of the petitioner that he moved a Regular Civil Suit No.
1840 of 1997 against the respondent who is his brother seeking
permanent injunction before the Civil Court, Vadodara. The said suit
came to be dismissed vide order dated 18.11.2006. The petitioner
challenged the said order vide Regular Civil Appeal No. 115 of 2006
along with Ex. 21 for amending the plaint and for withdrawal of
certain averments in the plaint. The said application came to be
rejected by the appellate court. The petitioner thereafter pending
the suit of 1997 moved another suit being Regular Civil Suit No. 81
of 2005 seeking possession and mesne profits along with an
application Ex. 5. The petitioner also filed his written statement
below Ex. 9. The court thereafter framed issued vide Ex. 23 and the
respondent tendered his affidavit for examination in chief vide Ex.
26. The petitioner also moved an application for amending the
written statement filed at Ex. 9 The Court below rejected the said
application. Being aggrieved by the said order, the present petition
is preferred.
3. Mr.
Dave, learned advocate appearing for the petitioner has submitted
that the Court below has erred in observing that the amendment sought
by the petitioner will change the nature of the suit preferred by the
respondent-original plaintiff. He submitted that the nature of the
suit shall change only if the original plaintiff amends the suit and
not by amending the written statement.
4. This
court has heard learned advocates for both the sides and perused the
papers on record. The court below has gone through the various
decisions of different courts and come to the conclusion that the
application is required to be rejected. The court below has rightly
observed that any amendment at that particular stage shall effect the
nature of the suit. This court is in complete agreement with the
reasonings adopted and findings arrived at by the court below.
However, it shall be open to the petitioner to clarify the same when
he turns up for evidence. In view of the above, petition is
dismissed.
(K.S.
JHAVERI, J.)
Divya//
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