Amendments that change the nature of the suit or introduce new causes of action are not permissible after trial has commenced.

ORAL ORDER

1. Heard learned advocate Mr.Yank Chavda for the petitioners and learned advocate Mr.Zalak Pipalika for respondent Nos.1 to 7 and 10 to 12.

2. By way of this petition filed under Article 227 of the Constitution of India, challenge is made against the order dated 12.01.2022 passed by the learned Principal Senior Civil Judge, Vanthali in Special Civil Suit No.12 of 2019, whereby the application under Order 6 Rule 17 of the Civil Procedure Code came to be rejected.

3. The present petitioners have preferred an application under Order 6 Rule 17 of the Civil Procedure Code in Special Civil Suit No.12 of 2019. The suit is for cancellation of deed, permanent injunction and claiming 2/3 shares in the properties of the partnership Firm namely ‘Shri Hari Oil Mill and Ginning Factory’.

3.1 After issues are framed and the suit was posted for the evidence of plaintiffs, the application Exhibit 46 came to be filed by the petitioners – original plaintiffs.

The amendment is sought for in the prayer clause only.

4. Learned advocate for the petitioners submits that the petitioners have filed a suit for the relief of cancellation of sale deed dated 15.05.2019 executed in favour of defendant Nos.3 and 4 and permanent injunction in the property bearing survey No.2758 situated in Manavadar, Taluka Batava. The further prayer in the plaint was to the effect that the plaintiffs have 2/3 shares in the properties of the partnership Firm namely Shri Hari Oil Mill and Ginning Factory and Harshad Iron Industries situated in Survey No.2758 of Manavadar, Taluka Batava.

4.1 It is submitted that the issues are framed, and thereafter, the plaintiffs have filed an application Exhibit 25 under Order 1 Rule 10(2) of the Code of Civil Procedure, whereby the partnership Firm namely Shri Hari Oil Mill and Ginning Factory, Batava and the partners, were sought to be joined in the said application, which came to be allowed on 06.02.2020 by the learned trial Court.

4.2 Learned advocate for the petitioners has further submitted that the reliefs which are sought to be amended in the plaint, do not change in the nature of suit and the same is within the period of limitation. It is further submitted that if the amendment is allowed to be carried out, the defendants would be given ample opportunity to meet with the prayers sought for, in the plaint.

4.3 In support of his submissions, learned advocate for the petitioners has placed reliance on the following decisions:-

(i) In the case of Sampath Kumar Vs.

Ayyakannu reported in 2002 LawSuit(SC) 881;

(ii) In the case of Abdul Rehman & Anr Vs. Mohd. Ruldu & Ors. reported in 2012 LawSuit(SC) 642;

(iii) Surender Kumar Sharma Vs. Makhan Singh recpoted in 2009 LawSuit(SC) 1597

5. Against this, learned advocate Mr.Pipalia for the respondents has vehemently objected and prayed for dismissal of the present petition and further supported the findings of the learned trial Court.

5.1 It is the submission of learned advocate for respondents that the amendment sought for will change the nature of suit. The amendment sought for is for rendition of account of a partnership Firm namely Shri Hari Oil Mill and Ginning Factory, Batava from 23.06.1969 till today, and also for mesne profit. The proposed amendment is for dissolution of the said Firm also.

5.2 It is pointed out by the learned advocate for the respondents that in the application Exhibit 46, no such ground is mentioned as to why such amendment is necessary and there is no ground mentioned in the application that what is the cause for amending the plaint. It is further submitted that the plaintiffs are seeking only to add in the prayer clause of the plaint, and no such consequential amendment is sought for, in the body o