JAGDISHBHAI GORDHANDAS BOSAMIYA AND ORS Vs. HEIRS AND LEGAL REPRESENTATIVES OF PRADEEPKUMAR CHUNILAL BOSAMIYA AND ORS

JUDGEMENT

(1.) THE present petition has been by the petitioners -original defendants under Articles 226 & 227 of the Constitution of India as well as under the Civil Procedure Code, 1908 for the prayer, inter alia, that appropriate writ of certiorari or any other writ, order or direction may be issued quashing and setting aside the impugned order passed by the 2nd Addl. Sr. Civil Judge, Gondal, in Special Civil Suit No. 14 of 2010 below Exhs. 16 and 18 dated 16.12.2013 at Annexure A allowing the amendment on the grounds stated in the petition.

(2.) THE background of the facts, briefly stated, are that the plaintiffs filed the aforesaid Special Civil Suit No. 14/2010 and subsequently filed two applications Exhs. 16 and 18 under O.6 R.17 of the Code of Civil Procedure for the amendment. Both these applications are produced at Annexures C and D. Application Exh. 16 refers to the prayer regarding the declaration that the agreement/samjuti karar dated 23.5.1976 and also the document for relinquishment of right dated 17.9.1975 may be declared as not binding. The application Exh. 18 is also filed for the same prayer.

(3.) HEARD learned advocate Shri Anshin Desai for the petitioners. He referred to the papers including the application Exhs.16 and 18 and the impugned order and submitted that such an application for amendment would change the very nature of the suit. He submitted that in a suit filed in the year 2010 by way of amendment the documents dated 17.9.1975 and 23.5.1976 are sought to be questioned and their genuineness and the legality is questioned after such a lapse of time after substantially the same have been implemented and given effect to. Learned advocate Shri Desai submitted that the respondents original plaintiffs have never questioned by challenging or filing the proceedings about the genuineness or the execution of both the documents. He submitted that in fact, pursuant to such agreement/samjuti karar with regard to the family arrangement or the partition, the lands have been exchanged and it has been acted upon by the parties including the plaintiffs and the defendants and, therefore, it is not open now to raise such an issue. Learned advocate Shri Desai submitted that in fact the rights of third parties are also created as stated in detail in the reply. Further, he submitted that in light of these documents 6 plots came to the petitioners and 4 plots of land went to the other side pursuant to these arrangement which has been accepted all these years. He, therefore, submitted that what has been finally concluded is sought to be reopened in the guise of amendment by widening the scope raising totally different issues. He therefore submitted that the present application for amendment may not be granted. Learned advocate Shri Desai submitted that had the suit been filed for the same relief, it would have been time -barred and therefore by way of amendment it cannot be permitted to be raised after such a lapse of time when the parties have accepted and acted upon it all these years. In support of the submissions, learned advocate Shri Desai has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Amrit Lal v. Shiv Narain Gupta,2010 15 SCC 510, and referred to the Head Note B to emphasise his submission that belated and mala fide amendment may not be permitted. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Mahavir Prasad and anr. v. Ratan Lal and anr., 2009 15 SCC 61, and submitted that as observed in this judgment, any such application for amendment at the belated stage may not be permitted. He has also referred to the judgment reported in (2010) 14 SCC 596 in the case of Van Vibhag Karamchari Griha Nirmal Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and ors., and referred to the observations made in Head Note B, para 32 and 33. He emphasised the observations in para 32 referring to the aspect of limitation and submitted that when the suit could not have been filed such amendment cannot be permitted. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Shiv Gopal Sah alias Shiv Gopal Sahu v. Sita Ram Saraugi and ors., 2007 14 SCC 120referring to the observations in para 11, 12, 14 and 15. He emphasised the observations in para 14 which has been quoted referring to the earlier judgment in the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., 1957 AIR(SC) 357.