Point of Law: Rule of amendment is essentially a rule of justice, equity and would conscious and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

JUDGMENT :

1. Rule returnable forthwith. Learned advocate Mr. S.P. Majmudar waives service of notice of rule for and on behalf of respective respondents in Special Civil Application No.9554 of 2016 and Special Civil Application No.9316 of 2016. Learned advocate Mr. A.B. Munshi waives service of notice of rule for and on behalf of respective respondents in Special Civil Application No.9554 of 2016 and Special Civil Application No.3937 of 2013.

2. In the present three petitions, respective parties in the Special Civil Suit No.127 of 2009 have challenged the legality and validity of the order passed below Exh.8 as well as Exh.65 preferred under Order 6 Rule 17 of the Code of Civil Procedure wherein application Exh.8 was rejected by the court below vide order dated 16.02.2013 whereas Exh.65 was allowed by the Lower Court vide order dated 21.03.2016. Aggrieved parties have preferred three different petitions before this Court challenging the same order passed below Exh.8 and Exh.65. Original plaintiffs in Special Civil Suit No.127 of 2009 have preferred Special Civil Application No.3937 of 2013 challenging the order passed below Exh.8 dated 16.02.2013 and respective defendants in Special Civil Suit No.127 of 2009 have challenged the order passed below Exh.65 dated 21.03.2016 by preferring two Special Civil Application Nos.9554 of 2016 and 9316 of 2016. On a joint request being made by learned advocates appearing for the respective parties to decide these three different petitions preferred by the respective parties against the order passed below Exh.8 and Exh.65 by the Trial Court in common Civil Suit No. 127 of 2009. Hence, these petitions are simultaneously decided by passing common order.

3. Short facts of the present case may be referred as under:

Special Civil Suit No. 127 of 2009 was filed by the plaintiffs, who are the petitioners in Special Civil Application No. 3937 of 2013 against the defendants/respondents seeking prayer of their share in the suit properties and sought partition, declaration and permanent injunction. As per the case of the plaintiff in the suit, that their family head and great grand father namely Manchharam Narsinbhai Patel had passed away on 15.05.1979, who had two sons namely Nagarbhai and Thakorebhai. Thakorebhai was also passed away in the year -1942 and he had three daughters namely Liliben, Urmilaben and Jaysukhben. Jaysukhben also passed away in the year-2008 and original plaintiffs and defendant No.9 have undivided share in the suit property. The suit was filed by the plaintiffs on 27.03.2009. During the pendency of the suit, the plaintiffs filed one application for amendment under Order 6 Rule 17 of the Code of Civil Procedure, 1908 below Exh.8 on 11.07.2009. By virtue of the amendment application, plaintiff wanted to include certain properties in the schedule of the plaint and they have sought the said properties to be included by virtue of Schedule-B. It was the case of the plaintiff in the amendment application below Exh.8 that the said properties were also purchased by the defendant Nos.3 and 4 from the funds of HUF, in which the plaintiffs had share. Plaintiffs wanted to include the properties on the ground that the said properties were also deemed to be ancestral properties and plaintiffs are entitled to share therein. The learned Trial Court, after hearing the respective parties, was pleased to reject the application below Exh.8 vide order dated 16.02.2013 on the ground that plaintiffs have not been able to prove that the said properties were ancestral properties. Thereafter, plaintiffs moved another application for amendment below Exh.65 on 25.03.2016 with a prayer to add certain other properties, which were not part of the earlier amendment application Exh.8. In the application Exh.65, the plaintiffs contended that the said properties have also been purchased from joint family funds and by selling the properties, in which the plaintiffs had share and thus, they are entitled to their share