Vijay Hathising Shah vs Gitaben Parshottamdas Mukhi .

CIVIL APPEAL No. 2012 OF 2019 (Arising out of S.L.P.(C) No.1873 of 2012)

Vijay Hathising Shah & Anr. ….Appellant(s)

VERSUS

Gitaben Parshottamdas Mukhi & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.02.25 and order dated 08.01.2008 passed by the High 16:30:20 IST Reason:

Court of Gujarat at Ahmedabad in Special Civil

1 1 Application No.6737 of 2007 whereby the High

Court allowed the Special Civil Application filed by

respondent No.1 herein and while setting aside the

order dated 23.02.2007 of the Trial Court allowed

the application for amendment of the plaint filed by

respondent No.1 herein.

3. The appeal involves a short point for its

disposal as would be clear from the facts mentioned

hereinbelow.

4. The appellants are the proposed defendants

whereas respondent No.1 is the plaintiff and other

respondents are the defendants in Civil Suit

No.6170 of 1990 pending in the City Civil Court,

Ahmedabad.

5. Respondent No.1 (plaintiff) has filed the suit

for partition of the suit land and for consequential

reliefs against the other respondents. In the said

suit, respondent No.1 filed an application for

2 2 amendment of the plaint. The Trial Court by order

dated 23.02.2007 rejected the said application.

6. Respondent No.1 felt aggrieved by the

rejection of her amendment application by the Trial

Court and filed Special Civil Application

No.6737/2007 in the High Court of Gujarat at

Ahmedabad. By impugned order, the High Court

allowed the Special Civil Application and while

setting aside the order dated 23.02.2007 of the Trial

Court allowed the amendment application giving

rise to filing of this appeal by way of special leave in

this Court by the proposed defendants.

7. So, the short question, which arises for

consideration in this appeal, is whether the High

Court was justified in allowing the Special Civil

Application filed by respondent No.1(plaintiff) and

was, therefore, justified in allowing the amendment

application.

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8. Heard Mr. P.H. Parekh, learned senior counsel

for the appellants and Mr. Priank Adhayarn, learned

counsel for the respondents.

9. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside the impugned order restore the order of the

Trial Court and reject the application filed by

respondent No.1 (plaintiff) for amendment of her

plaint.

10. In our view, the Trial Court was right in

rejecting the application. This we say for more than

one reason. First, it was wholly belated; Second,

respondent No.1(plaintiff) filed the application for

amendment of the plaint when the trial in the suit

was almost over and the case was fixed for final

arguments; and Third, the suit could still be

decided even without there being any necessity to

seek any amendment in the plaint. In our view,

4 4 amendment in the plaint was not really required for

determination of the issues in the suit.

11. It is for these reasons, the impugned order is

legally unsustainable. The appeal thus succeeds

and is accordingly allowed. The impugned order is

set aside and the order dated 23.02.2007 of the

Trial Court is restored.

12. The Trial Court is directed to decide the civil

suit within one month strictly in accordance with

law.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI]

New Delhi;

February 25, 2019

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