Point of Law: Civil Suit - Jurisdiction of Court - Only wrong decision may not be a ground for exercise of jurisdiction under this article unless wrong is referable to grave dereliction of duty, flagrant abuse of power by subordinate Courts and tribunals, resultantly in “grave injustice” to any party.

JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

1. This petition under Article 227 of the Constitution of India assails the order dated 27.11.2020 passed below Exh.76 in Regular Civil Suit No. 41 of 2016 by the learned Principal Senior Civil Judge, Khambhat, whereby, an application preferred by the present petitioner-original defendant under O.6 R.17 of the Civil Procedure Code, 1908 (CPC) came to be rejected.

2. Rule.

3. Filtering the unnecessary details, the case on hand are that the petitioner is the original defendant and the respondents are the original plaintiffs who have filed a civil suit being Regular Civil Suit No. 41 of 2016 for declaration and permanent injunction before the concerned Civil Court at Khambhat. In the said suit, the respondents-plaintiffs had filed an application Exh.5 for interim injunction as well as an application Exh.20 for mandatory injunction and by a common order dated 06.08.2016, the learned 4th Additional Civil Judge, Khambhat was pleased to partly allow application Exh.5 and directed to maintain status quo qua the suit property till final disposal of the suit, however, rejected the application Exh.20 for mandatory injunction. The order passed below Exh.5 came to be challenged before the first appellate Court by way of Misc. Civil Appeal No. 180 of 2016, however, the learned Additional District Judge at Anand rejected the said appeal by an order dated 13.10.2017 and confirmed the order dated 06.08.2016, against which, the petitioner-defendant preferred a petition being Special Civil Application No. 1514 of 2018 before this Court, which came to be disposed of vide order dated 06.08.2019 by this Court without disturbing the aforesaid orders, however, the suit came to be expedited.

3.1 In the meantime, the petitioner preferred an application under O.6 R.17 of CPC dated 19.02.2020 seeking amendment in the written statement filed by the petitioner-defendant vide Exh.21 in the said suit. The said application came to be rejected vide order dated 27.11.2020 by the learned Principal Senior Civil Judge, Khambhat, which is the subject matter of challenge in this petition.

4. Heard, learned advocate Mr. Dilip B. Rana for the petitioner-defendant and learned advocate Mr. J.H. Kapadia for the respondents-defendants.

4.1 The learned advocate for the petitioner-defendant submitted that the order passed by the learned trial Judge is illegal, perverse and against the settled principles of law and without properly considering the material produced on record. It is submitted that by way of Regular Civil Suit No. 330 of 1993 in which the present petitioner-defendant was the party defendant and the subject matter was the same as in the present suit and in the said suit, since the decision was arrived at, the principle of res-judicata applies to the present suit and hence, by way of amendment application in question, the petitioner had sought to place the said fact on record, however, without considering the said fact in its true and proper perspective, the learned trial Judge has rejected the said application on the ground that the principle of res-judicata does not apply as the order passed is the interlocutory one as also the trial has already commenced and thereby, has materially erred in rejecting the said application. It is also submitted that in the said suit, Exh.5 application also came to be rejected by the learned trial Court concerned.

4.2 Further, drawing attention to the provisions of O.6 R.17 CPC, the learned advocate for the petitioner-defendant submitted that under the proviso to this rule, the learned trial Court is empowered to grant amendment even after trial has commenced when after due diligence the party could not have raised the matter before the commencement of trial. It is submitted that the petitioner was no aware of the earlier suit in which, the subject matter was the same and such an order was passed, which is required to be brought on record. However, the learned trial Judge rejected the application.

4.3 T