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SCA/10656/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10656 of 2007
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DEVSHIBHAI
VIRABHAI - Petitioner(s)
Versus
DEVABHAI
DAMABHAI - Respondent(s)
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Appearance
:
MR
ASHISH M DAGLI for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3
MR MEHUL S SHAH for
Respondent(s) : 1,
MR SURESH M SHAH for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 03/09/2007
ORAL
ORDER
1. This
Special Civil Application has been preferred against the order passed
by the Additional Civil Judge, Morbi below Exh. 26/2 dated 28th
February, 2007 whereby the amendment application preferred by the
petitioner (original plaintiff) was partly allowed but substantially,
dismissed. The order allows the change in name of the original
defendant, but, it was dismissed for giving the correct narration of
the property in dispute. There was some error in narration of the
property in the plaint and looking to the Court Commissioner’s Report
and looking to the correctness of the fact, the amendment application
was preferred below Exh. 26/2 by the petitioner (original plaintiff).
2. Though
the respondent is served, nobody has appeared on behalf of the
respondent. The learned Counsel appearing for the respondent is
absent.
3. I
have heard the learned Counsel appearing for the petitioner who has
submitted that the petitioner (original plaintiff) has preferred
Civil Suit No. 233/2006, which is for declaration and permanent
injunction. The suit property was narrated in the plaint but there
was some error in the description and, therefore, an application
below Exh. 26/2 was preferred for amendment in the plaint for giving
the correct narration of the property. In fact as per the Court
Commissioner’s Report also, the narration of the property in the
plaint, requires amendment. Thus, the application of the petitioner
below Exh. 26/2 is for giving the correct narration of the property,
which is supported by a document prepared by the Court Commissioner
at Exh. 10/2.
4. Having
heard the learned Counsel appearing for the petitioner (original
plaintiff) and looking to the facts and circumstances of the case, I
hereby quash and set aside the order passed by the Trial Court below
Exh. 26/2 in Civil Suit No. 233/2006 mainly for the following facts
and reasons;
(i) it
appears from the facts of the case, that the petitioners (original
plaintiff), who have preferred the Civil Suit for declaration and
permanent injunction of the suit property was narrated in the
plaint. Boundaries of the suit premises was not correctly narrated
i.e. what is situated on the north, south, east and west was not
properly narrated and for this purpose an application for amendment
below Exh. 26/2 was given. The suit was filed on 12th
June, 2006 and amendment application was given on 7th
October, 2006. Looking to the facts of the case, there is no much
delay in preferring the application.
(ii) Looking
to the facts of the present case and the report of the Court
Commissioner dated 13th June, 2006 at Exh. 10/2, the
narration given by the original plaintiff in the amendment
application below Exh. 26/2 requires to be allowed by the Trial
Court. The correct narration of the property ought to have been
accepted by the Trial Court, for rendering justice.
(iii)Looking
to the facts of the present case, no prejudice is going to be caused
to the original defendant if the amendment application is allowed.
The suit property is not properly narrated. The petitioner (original
plaintiff) is not an architect or an engineer. Errors are bound to
be corrected at any stage. No much time has passed after filing of
the suit. These facts are not being properly appreciated by the
Trial Court.
5. Looking
to the facts and reasons, the order passed by the Trial Court is
quashed and set aside. The amendment application below Exh. 26/2 is
allowed. The application stands disposed of as allowed. Rule is
made absolute.
(D.N.
PATEL, J.)
siji
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