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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER, J.
SHAILESHBHAI OCCHAVLAL KADAKIYA THROUGH POA PRAVINCHANDRA
Versus
PANNALAL MITHALAL DARJI L.H.OF MITHALAL MOTILAL DARJI & OTHER
SPECIAL CIVIL APPLICATION NO. 238 of 2013
Decided On : 25.02.2014
Held :
The fact remains that the permission to amend the plaint was granted before 28.6.2006, i.e. before the date when the Court framed the issues and the said permission was acted upon and the amendment was carried out on 21.12.2004, i.e. long time before the Court settled the issues. In this view of the matter, the consequence contemplated under Order VI Rule 18 would not be attracted in facts of present case. The respondents had also carried out necessary amendment in the injunction application and that, therefore, though, the defect, referred to in the judgment by the learned trial Court, occurred while filing the amended plaint, it cannot be said that the amendment was not at all carried out after the permission was granted by the learned trial Court. [Para 13]
Examination of the provisions under Rule 14 and Rule 15 - particularly proviso to Rule 14 also gives out that the provisions are not mandatory and if the pleadings are infected by any defect due to which the requirement of Order 6 Rule 14 or Rule 15 is not fully complied, then it would not be fatal. Such defect can be characterized as procedural irregularity. Moreover, such defect can be cured and corrected even at appellate stage and even after the expiration of period of limitation for filing the suit. The Court has the discretion to allow the party to remove the defect at later stage though the period of limitation may have expired. [Para 19]
Therefore, noncompliance of the requirements under the provision would not, necessarily, result into depriving the concerned party from curing the defect and equity would tilt the balance in favour of allowing the concerned party to the proceeding to cure the defect and then to prosecute the case on merits. Such procedural provisions and requirements do not deserve to be raised to the level of substantive requirement which would render its noncompliance as violation of substantive right of the other side or which would render the pleadings so meaningless which would incur liability of rejection of plaint or written statement only because of such defect. [Para 21]
It comes out that the objection raised by the petitioner in light of Order 6 Rule 14 and Rule 15 is without merits and is unsustainable and that such defect is procedural irregularity and it cannot be raised to the level of violation of substantive right and the procedural requirement cannot be characterized as substantive requirement that its noncompliance would render the pleadings, i.e. the plaint or the written statement meaningless so as to entail rejection of plaint/suit or the reply. [Para 25]
When the impugned order passed below Exh. 16 is examined in light of the facts and circumstances of the case, it emerges that the reasons and conclusions by the learned trial Court in the said order cannot be faulted and cannot be said to unreasonable or unjust and it cannot be said that the learned Court has exercised the jurisdiction and the discretion illegally or arbitrarily or with material irregularity.
[Para 28]
Law Laid Down :
If on permission granted by Court the plaint or reply is amended or the fresh signatures is put or verification of the plaint is made the same shall relate back to original date of suit and original date of institution of the suit would not be affected.
K.M. THAKER, J.
1. In present petition, the petitioner has prayed, inter alia, that:
“19(B) Be pleased to issue a Writ of Certiorari or any other appropriate Writ, Order, or direction quashing and setting aside the impugned Orders dated 15212 and 8/10/12 (Annexure A collectively) passed by the Ld. Additional District Judge, Dahod, passed below Ex.16 and 20 respectively in Regular Civil appeal No.2/2010 after holding the same as contrary to law and evidence on record and be pleased dismiss Ex.16 application filed by the respondents in R.C.A. No.2/2010.”
2. So far as the facts are concerned, it has emerged from the record that father of present respondents No.1 to 3 filed a suit being Regular Civil Suit No.93 of 2004 against present petitioner.
2.1 In the said suit, respondents No.1 to 3 plaintiffs prayed for declaration and permanent injunction with regard to a shop (suit property) allegedly taken on rent.
2.2 The suit was opposed by the defendant (present petitioner) and written statement was filed at Exh.6.
2.3 It appears that during the pendency of the said suit, father of present respondents No.1 to 3 died and that, therefore, an application for impleading the heirs (present respondents No.1 to 3) of the deceased plaintiff was filed which was granted by the learned trial Court.
2.4 Subsequently, the respondents-plaintiffs made an application (Exh.13) seeking amendment in the plaint and in the cause title, which was granted by the learned trial Court vide order dated 7.12.2004 below Exh.13 and the respondents-plaintiffs were permitted to carry out appropriate amendment in the plaint and in the cause title.
2.5 According to the allegations by the petitioner, the plaintiffs submitted another application (Exh.24) requesting for permission to amend the application for interim injunction.
2.6 The said application was filed for bringing injunction application in consonance with and in tune with the amended plaint which was filed in pursuance of the order dated 7.12.2004.
2.7 After hearing the parties, the learned trial Court allowed the said application (Exh.24) as well vide order dated 5.4.2005 and permitted the plaintiffs to amend the interim injunction application as per amended plaint.
2.8 Subsequently, the learned trial Court settled the issues on 28.6.2006 and the proceedings of the suit continued further.
2.9 After conclusion of the entire proceedings the suit culminated into judgment and decree dated 15.12.2009 whereby the learned trial Court dismissed the suit.
2.10 Being aggrieved by and dissatisfied with the judgment and decree dated 15.12.2009 passed by the learned trial Court, the respondents, i.e. original plaintiffs preferred an appeal before the learned first appellate Court which came to be registered as Civil Appeal No.2 of 2010.
2.11 According to present petitioner, after the hearing of the appeal was concluded, the respondents – original plaintiffs and appellants submitted an application (Exh.16) before the learned first appellate Court in the said Regular Civil Appeal No.2 of 2010 and prayed for permission to sign the amended plaint (which was filed in light of the orders dated 7.12.2004) and also to tender an affidavit in support of the amended plaint.
2.12 The petitioner herein resisted the application by filing reply (Exh.19).
2.13 The petitioner has alleged that the respondents – plaintiffs carried out the changes permitted by the learned trial Court, however, the said changes / amendment were carried out after statutory period of 14 days from the date of order. The petitioner has further alleged that the amended plaint was not signed by the respondents – plaintiffs and the amended plaint was not supported / accompanied by requisite affidavit.
2.14 After considering rival submissions of the contesting parties, the learned first appellate Court has, vide order dated 15.2.2012 below Exh.16, allowed the said application and permitted the respondents – original plaintiffs and the appellants to sign the amended plaint
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