Judicial Analysis Court Copy Headnote Facts Arguments Court observation

GUJARAT HIGH COURT
Maulik J. Shelat, J.
Chiragbhai Arvindbhai Desai – Petitioner
versus
Heirs of Pushpaben and Ors. – Respondents
R/Special Civil Application No.26326 of 2022 with Civil Application (for Stay) No.1 of 2024 in R/Special Civil Application No.26326 of 2022 with Civil Application (for Stay) No.1 of 2025 in R/Special Civil Application No.26326 of 2022
Decided on 7.3.2025

Advocates:
Counsel for the Parties:
For the Petitioner No.1: Mr. Hemang H. Parikh (2628)
For the Respondent No.1, 1.2, 1.3, 1.3.1, 1.3.2, 2, 2.1, 2.2, 4.2: Ds Aff. not Filed (N)
For the Respondent No.3, 4, 4.1: Mr. Mrugen K. Purohit (1224)
For the Respondent No.1.1, 2.1.1, 2.1.3, 2.2.1, 2.2.3, 2.3: Notice Served
For the Respondent No. 2.1.2, 2.2.2, 2.4: Notice Served by Ds

IMPORTANT POINTS
(1) Amendment in plaint – Issue of limitation would not be a factor to be considered by Trial Court while adjudicating amendment application.
(2) By way of clever drafting, plaintiff cannot allow to maintain suit which is otherwise not maintainable.
(3) Suit seeking cancellation of sale-deed – Until document is avoided or cancelled by proper declaration, duly registered document remains valid and binds parties – Suit necessarily is to be filed within three years from the date when cause of action had accrued to plaintiff.

Headnote:
(A) Civil Procedure Code, 1908 – Order VI Rule 17 – Amendment in plaint – Suit for specific performance of agreement to sell – Amendment application rejected by Trial Court, holding lack of due diligence and bar of limitation – Issue of limitation would not be a factor to be considered by Trial Court while adjudicating amendment application filed under Order VI Rule 17 of CPC, especially when issue of limitation is debatable one – If plaintiff would have filed a substantive suit seeking declaration which is sought for byway of amendment in pending suit, such substantive suit from its bare reading would be time barred and liable to be dismissed then, amendment as sought for cannot be granted – Trial Court erroneously observed that by granting amendment as sought for would change nature of suit. (Paras 10.2, 11.2 and 11.4)
(B) Specific Relief Act, 1963 – Section 31 – Civil Procedure Code, 1908 – Order VI Rule 17 – Suit seeking cancellation of sale-deed by way of amendment in plaint – By way of clever drafting, plaintiff cannot allow to maintain suit which is otherwise not maintainable – When plaintiff has come out with amendment application filed in year 2021 without giving any explanation about delay in seeking amendment as sought for declaration thereby, to challenge sale deed executed in year 1992 then, Trial Court was well within his right to reject impugned application having found that declaration as sought for is time barred – Amendment sought by plaintiff is hopelessly time barred – When trial Court while exercising its discretionary powers thereby not allowed amendment application filed by plaintiff, such discretionary order may not be interfered by High Court while exercising its power under Article 227 of Constitution merely because some other view is also possible. (Paras 12.5, 12.7, 14.6, 15.1, 16 and 16.1)
(C) Limitation Act, 1963 – Article 113 – Suit seeking cancellation of sale-deed – Period of limitation – Provisions of Act, 1963 would have no application at all in a case where declaration sought for is in relation to transaction being void and seeking cancellation of such void transaction – In present case, since plaintiff is seeking declaration, by way of amendment after about 29 years, to have sale deed in question cancelled being void, necessarily, declaration has to be given by court in that behalf – Until document is avoided or cancelled by proper declaration, duly registered document remains valid and binds parties – Suit necessarily is to be filed within three years from the date when cause of action had accrued to plaintiff – In any case, even if transaction/instrument is void and plaintiff seeks declaration of such transaction/instrument void/illegal, then, plaintiff requires to challenge it within period of limitation. (Paras 14.4, 14.5 and 14.6)
Result: Special Civil Application dismissed.

JUDGMENT (ORAL)

Heard learned advocate Mr. Rashesh Parikh for the petitioner and learned advocate Mr. Mrugen K. Purohit for the respondents Nos. 3 & 4 – original defendant Nos. 3 & 4. Though served, none appeared for rest of respondents.

2. The present application is filed under Article 227 of the Constitution of India seeking following reliefs :-

“A. Your Lordships may be pleased to admit and allow this petition.

B. Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned judgment dated 09.11.2022 passed below Exh. 103 in Civil Suit No. 24 of 1992 passed by 6th Additional Senior Civil Judge at Nadiad.

C. Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to stay further proceedings of the Civil Suit No. 24 of 1992 pending Nadiad before the 6th Additional Senior Civil Judge at Kada in the interest of justice;

D. Any other and such further relief as may be deemed fit just and proper may kindly be granted in the interest of justice.”

3. The parties will be referred as far as possible as per their original position in the suit.

Short facts of the case.

4. The petitioner herein is the original plaintiff of Civil Suit No. 24 of 1992 filed against the respondents herein before the Civil Judge, Senior Division, Nadiad.

4.1 It is the case of the plaintiff that grandfather of the plaintiff has entered into an agreement to sale on 21.02.1971 with the original defendant No.1 and 2 for suit land situated at survey No. 1238, admeasuring 1 acre, 31 guntha ( 7193 Sq. Mts.) at Nadiad.

4.2 The defendant No.1 alleged to have handed over the possession of the suit land in favour of the grandfather of the plaintiff as agreement to sale was with the possession although unregistered because the suit land was new tenure land. It is further alleged that it was incumbent upon defendant No.1 & 2 to get the suit land converted into old tenure land, then after a process of sale deed can be completed. There has been further alleged that the suit land was converted to old tenure land on 30.12.1991 and on request being made for execution of sale-deed, defendant no. 1 & 2 have refused to execute the sale deed in favour of the plaintiff as by virtue of Will of his grandfather, he is having interest in this suit land.

4.3 It has been further alleged by the plaintiff that defendant no. 1 & 2 have entered into an agreement to sale of the suit land in favour of defendant no. 3 & 4 on 02.01.1992.

4.4 Thus, in view of the aforesaid facts and circumstances, suit in question is filed seeking relief of specific performance of agreement to sale on 21.01.1971 as well as seeking cancellation of agreement to sale executed by defendant no. 1 & 2 in favour of the defendant no. 3 & 4. The suit came to be filed on 09.01.1992 as well as seeking permanent injunction thereby defendant no. 1 & 2 may be prohibited to transfer/ sale/gift etc. the land in favour of either defendant no. 3 & 4 or anyone else.

4.5 The defendants have appeared in the suit and contested on various grounds.

4.6 The trial Court has framed the issue on 03.09.1997. The suit was dismissed for default on 19.02.1998 which appears to have been restored on its file on 05.08.2014.

4.7 On 27.01.2021 after about 8 years from restoration of the suit, the plaintiff has filed the impugned application below Exh. 103 under Order VI rule 17 of CPC seeking an amendment of suit thereby requested the trial Court to allow the amendment as sought for.

4.8 The main thrust of filing the impugned amendment application as it came to be noticed by the plaintiff that despite there was an order dated 22.06.2022 granting status quo passed by the Appellate Court in Misc. Civil Appeal No. 131 of 1992, the defendant no. 1 & 2 have executed registered sale deed on 03.10.1992 in favour of the defendant no. 3 & 4 of subject suit land which was in complete violati