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2019 Supreme(Guj) 1063
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.J. SHASTRI, J.
Jaldarshan Coop Housing Soc Ltd. - Petitioner
Versus
Mahin Rameshchandra Modi & Other - Respondents
R/Special Civil Application No. 3761 Of 2018
Decided On : 15-07-2019
For the Petitioner: Mr. M.C. Bhatt With Mr. Vikram J. Thakor
For the Respondent: Mr. Maunish T. Pathak, Mr.Gaurang B. Gohel, Notice Served By Ds
Point of Law
If there is a change of circumstance, even one additional fact would make a world of difference in applying the precedent
Headnote:
Constitution of India, Article 227 – To call for the records and proceedings and having examined the legality, validity and propriety of the impugned order be pleased to issue appropriate writ, order or direction quashing and setting aside the Order – Held, In a peculiar background of facts of this case, such principle is not possible to be adopted and applied straightway. In fact, the law on the precedent is quite clear that if there is a change of circumstance, even one additional fact would make a world of difference in applying the precedent and therefore, keeping in view this proposition in mind, the Court is of the considered opinion that the case is made out by the petitioner to call for interference – Impugned order being not sustainable in the eye of law is quashed and set aside and the relief’s prayed for in the petition is granted – Petition allowed (Paras 10 and 11)
Facts of the Case:
Respondents herein got one deed executed by the petitioner on or about 31.10.1964 and also got registered on the very same day. The respondents claimed that they were brokers for transaction of lease of the concerned property from its original owner and the consideration mentioned in the deed is in respect of role played by the respondents for getting the bargain done regarding lease of the questioned property between the petitioner and the original owners. On the same day, i.e. on 31.10.1964, the original owners executed the lease deed conferring leasehold right on the petitioner of the questioned property for a period of 99 years with a liberty to the petitioner to renew the lease for a further period of 99 years. It is the case of the petitioner that the respondents instituted Civil Suit
Finding of the Court:
In a peculiar background of facts of this case, such principle is not possible to be adopted and applied straightway. In fact, the law on the precedent is quite clear that if there is a change of circumstance, even one additional fact would make a world of difference in applying the precedent and therefore, keeping in view this proposition in mind, the Court is of the considered opinion that the case is made out by the petitioner to call for interference – Impugned order being not sustainable in the eye of law is quashed and set aside and the relief’s prayed for in the petition is granted
Result: Petition allowed
JUDGMENT :
A.J. SHASTRI, J.
1. Present petition under Article 227 of the Constitution of India is filed by the present petitioner for the purpose of seeking following relief’s:-
(A) Your Lordships may be pleased to admit and allow this petition.
(B) That the Your Lordships may be pleased to call for the records and proceedings and having examined the legality, validity and propriety of the impugned order be pleased to issue appropriate writ, order or direction quashing and setting aside the Order at Annexure-A passed on 17.2.2018 below Exhi.202 in Civil Suit No.4356 of 1984 by learned 18th City Civil Judge, Ahmedabad.
(C) Pending admission hearing and final disposal of this petition, this Hon'ble court may be pleased to stay the execution, implementation and operation of the order passed by learned 18th Civil Judge, Ahmedabad in Civil Suit No.4356 of 1985 dated 17.2.2018 below Exhi.202 and further proceedings of Civil Suit No.4356 of 1984 be stayed, in the interest of justice.
(D) ….......
(E) ….......”
2. The case, in brief, submitted by the petitioner is that the respondents herein got one deed executed by the petitioner on or about 31.10.1964 and also got registered on the very same day. The respondents claimed that they were brokers for transaction of lease of the concerned property from its original owner and the consideration mentioned in the deed is in respect of role played by the respondents for getting the bargain done regarding lease of the questioned property between the petitioner and the original owners. On the same day, i.e. on 31.10.1964, the original owners executed the lease deed conferring leasehold right on the petitioner of the questioned property for a period of 99 years with a liberty to the petitioner to renew the lease for a further period of 99 years. It is the case of the petitioner that the respondents instituted Civil Suit No.4356 of 1984 in the Court of learned City Civil Judge and prayed for a relief of eviction of the petitioner from the questioned land after demolishing the entire existing residential premises about 96 apartments constructed by the society to provide housing accommodation to its members and alternatively prayed that in the eventuality, the Court refused to grant relief of eviction, prayer for damages to the extent of Rs.2,80,00,000/- be granted against the present petitioner. The petitioner appeared in the suit proceedings, submitted written statement raising the factual and the legal contentions. The said civil suit of 1984 at one point of time got dismissed for default. Later on, the same was restored and the issues were framed at Exh.14. In the suit of 1984, the respondents preferred an application at Exh.202 in the year 2017, i.e. almost after a period of 33 years for seeking substantial amendment by way of alternative relief of damage in the sum of Rs.2,40,00,00,000/-. This application preferred under Order 6 Rule 17 of the Code of Civil Procedure ('the Code' for short) came to be contested. However, learned Judge surprisingly allowed the same by way of an order dated 17.2.2018 and has allowed the suit to be converted into a claim of Rs.2,40,00,00,000/- in place of Rs.2,80,00,000/-. Since this has got effect of amendment almost after a period of 33 years, the petitioner has assailed the same by way of the present petition under Article 227 of the Constitution of India.
3. The Court originally issued notice on 12.3.2018 and thereafter, from time to time, the same has come up for consideration and finally, the petition has come up for consideration in which learned advocates have requested that in view of the peculiar set of circumstance, the petition be finally dealt with as the very same time will consume in even after formal admission of the petition and considering the long length of pendency of the suit, the Court deemed it proper to take up the matter upon the request of learned advocates. Resultantly, the Court heard the advocates who represented the respective sides.
4. Learne
