Gujarat High Court Case Information System
Print
SCA/7784/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7784 of 2011
=========================================================
JAGDISH
PAMANDAS GURNANI & 1 - Petitioner(s)
Versus
RAMCHAND
GAIMAL LALWANI - Respondent(s)
=========================================================
Appearance
:
MR
MAHENDRA TRIVEDI for
Petitioner(s) : 1 - 2.
MR BHARGAV HASURKAR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 10/10/2011
ORAL
ORDER
The
petitioners have filed this petition under Articles 226 & 227 of
the Constitution of India and made prayer to issue writ of
certiorari and to set aside order dated 11/5/2011 passed below exh
19 in H.R.P. Suit No. 1511/2010 filed in the Small Cause Court at
Ahmedabad granting application for amendment filed under Order 6
Rule 17 of the Civil Procedure Code.
The
respondent tenant filed H.R.P. Civil Suit No. 1511/2010 in the Small
Cause Court at Ahmedabad for permanent injunction restraining the
petitioners landloard from taking forcible possession of the suit
premises occupied by him as tenant. The respondent also filed
Injunction application for temporary injunction under Order 39 Rule
1 read with Section 151 of the Civil Procedure Code and also filed
an application for appointment of Court Commissioner. After
issuance of notice to both the parties, the Court Commissioner made
report in respect of the suit premises. The respondent preferred
the application exh 19 for amendment of plaint and injunction
application under Order 6 Rule 17 of the Civil Procedure Code
contending that he is a tenant of premises situated at 5, Dhanvanti
Society behind Water Tank, Near Sardar Nagar, Naroda, Ahmedabad but
through over sight the suit premises was mentioned in the pleading
as number 2. Therefore, it is necessary to amend Plaint and
Injunction application by amending No. 2 in place of No. 5 shown as
suit premises. The Trial Court after hearing learned advocates for
the parties allowed the application. Being aggrieved by the said
decision, the petitioners landlord original defendants have
approached this Court by filing this petition.
I
have heard learned advocate Ms. Lopa Bhatt for learned advocate Mr.
MM Trivedi for the petitioners and learned advocate Mr. Bhargav
Hasurkar for respondent at length and in great detail. I have also
perused the impugned order.
Learned
advocate Ms. Bhatt submitted that the Court has allowed the
application, which has changed nature of suit. Therefore, the Trial
Court committed error in allowing the application. She also
submitted that the documentary evidence produced on record indicates
that the suit premises indicate premises as No. 5. Therefore, the
Trial Court committed error in passing the impugned order.
Learned
advocate Mr. Hasurkar submitted that amendment sought in the
pleading was only a typographical error and it does not change
nature of the suit. Therefore, no error is committed by the Trial
Court in granting permission to amend the pleadings. Therefore, the
impugned order is required to be confirmed and present petition is
required to be dismissed.
Learned
advocate Ms. Bhatt admitted that the respondent is their tenant
occupying suit premises bearing No. 5 at Dhanvanti Society in Naroda
area of Ahmedabad. Therefore, it is not in dispute that respondent
is tenant of the petitioners but there is error in description of
the suit premises. The averments made in the application indicate
that on account of typographical error the suit premises was
described as no. 2 in place of no. 5 and hence amendment was sought.
Learned advocate Ms. Bhatt submitted that on account of the
amendment the nature of the suit has changed, however, it is not in
dispute that the respondent is tenant of the petitioners. It
appears that on account of typographical error in pleadings, error
in describing the suit premise has cropped up. It is well settled
that normally amendment in pleading is required to be allowed unless
such amendment is malafide or changes nature of the suit. The
amendment granted by the trial court does not change nature of the
suit. The petitions have not alleged malafide. Therefore, the Trial
Court was justified in granting the amendment in the interest of
justice. Looking to the nature of the amendment allowed, in my
view, this Court is not required to exercise its extra ordinary
jurisdiction under Articles 227 of the Constitution of India.
In
the result, the petition fails and stands dismissed. Notice
discharged. No order as to costs.
(BANKIM.N.MEHTA,
J)
asma
Top