This writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioner aggrieved against order dated 02.01.2015 passed by the trial court, whereby, the application filed by the petitioner under Order VI, Rule 17 CPC seeking amendment in the plaint has been rejected by the trial court.

The facts in brief may be noticed thus : the petitioner-plaintiff filed a suit on 22.02.2010 seeking cancellation of sale deed dated 12.06.2007 and possession of the plot and in the alternative for recovery of the amount of sale consideration; it was averred in the plaint that plaintiff owns a plot of land at Sumerpur; the petitioner is a permanent resident of Ahmedabad and, therefore, the plot was being looked after by defendant No. 1 and a power of attorney dated 13.01.2004 was executed in his favour; in May, 2007 the defendant No. 1 was directed not to act on the power of attorney; in December, 2007 when the defendant No. 1 misbehaved, the petitioner inquired at the office of the Sub Registrar and came to know that defendant No. 1 has executed sale deeds in favour of his wife and the same have been got registered on 13.06.2007; it was alleged that the sale deeds were executed by defendant No. 1 in favour of defendant No. 2 without paying any consideration to the petitioner only with a view to grab the land in question; the sale deeds were void and were liable to be cancelled; in the alternative it was prayed that the amount of consideration as indicated in the sale deeds be ordered to be paid by the defendants to the plaintiff, which in the suit was Rs. 3,50,000/-.

A written statement was filed by the defendants on 29.05.2010 and a replication was filed by the plaintiff on 25.03.2011; whereafter issues were framed by the trial court and affidavits in evidence were also filed by the plaintiff; whereafter, on 04.04.2014 an application under Order VI, Rule 17 CPC was filed by the plaintiff seeking amendment in the plaint, so as to claim that though in the sale deeds the consideration shown was Rs. 3,50,000/-, the Sub Registrar as per DLC rates has valued the property at Rs. 7,92,000/-and the actual market rate of the plot was Rs. 18,00,000/-to 19,00,000/-and in the alternative relief also sought amendment to claim Rs. 18,00,000/- instead of Rs. 3,50,000/-.

The application was opposed by the defendants on the ground that the amendment was not permissible in law; the nature and form of the suit would change and in view of the fact that evidence has already started and affidavit of the plaintiff has already been filed, the grant of amendment was not justified.

The trial court after hearing the parties came to the conclusion that the plaintiff has not explained reason regarding awareness or non-awareness of the market rate at the time of filing of the suit, though the nature of the suit by the amendment would not change, but the valuation and Court fees would change; however, the plaintiff has not sought any amendment in the valuation and Court fees of the suit in the suit as per the pleadings; affidavits of three witnesses have already been filed and grant of amendment would take the suit back to previous stage and, consequently, dismissed the application.

It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed by the petitioner, inasmuch as, merely because the paragraphs in the plaint pertaining to the valuation and Court fees were not proposed to be amended by the plaintiff, if the amendment was granted by the trial court, as a natural consequence, the plaintiff would have paid the additional Court fees and the same cannot be a sufficient reason for rejection of the application filed by the petitioner; it was submitted that the trial court though has not rejected the application on the ground of proviso to Order VI, Rule 17 CPC, however, certain observations have been made in the context of the said proviso and in view of the law