2024 Supreme(Online)(GUJ) 4220
HIGH COURT OF GUJARAT
MR. JUSTICE J. C. DOSHI, J
NARENDRA MAHASUKHLAL MEHTA – Appellant
Versus
MAHESHBHAI MOHANBHAI MEHTA – Respondent
R/SPECIAL CIVIL APPLICATION NO. 15575 of 2019
Petitioner Advocates:RAVI B SHAH(5346) ,Respondent Advocate: NOTICE UNSERVED(8)
Amendments that change the nature of a suit are impermissible under Article 227 of the Constitution of India.
Headnote:(A) Constitution of India - Article 227 - Civil Procedure Code - Order 1 Rule 10 - Petition against denial of amendment in pleadings - The petitioner sought to amend pleadings in a suit for easement rights, which would alter the nature of the suit to one challenging the title of the defendants. The Trial Court rejected the amendment application, stating it would change the nature of the suit. (Paras 5 and 6)
(B) Amendment of pleadings - The court held that allowing the amendment would change the nature of the suit from easement rights to a title challenge, which is not permissible. (Para 6)
Facts of the case:
The petitioner filed a suit for easement rights against the defendants who had purchased the disputed property. The plaintiff sought to amend the pleadings to challenge the title based on a Will.
Findings of Court:
The Trial Court's rejection of the amendment application was upheld as it would change the nature of the suit.
Issues: The main issue was whether the proposed amendment would change the nature of the suit from easement rights to a title challenge.
Ratio Decidendi: The court ruled that amendments that change the nature of the suit are not permissible under the limited jurisdiction of Article 227.
Result: Petition dismissed.
ORDER1.Heard learned advocate for the petitioner and learned advocate for respondent nos.4 to 7.
2.Learned advocate for the petitioner submits that respondent no.1 who is residing abroad has expired and he is deleted from lis before the learned Trial Court.
3.The present petition is filed with following reliefs :- "A. admit and allow this petition/ B. issue writ of certiorari and/or any other writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned judgment and order dated 10/01/2019 passed by the learned Seventh Additional Civil Judge, Surat below application exhibit 59 in Regular Civil Suit no.241 2012;
C. pending admission hearing and final disposal of this petition, this pleased Hon'ble Court to may be stay the further proceeding of Regular Civil Suit no.241 of 2012;
D. this Hon'ble Court may be pleased to grant ex-parte order in terms of prayer clause (C) hereinabove;
E. this Hon'ble Court may be pleased to award costs of this petition:
F. pass such other orders that may be just and necessary in the facts and circumstances of the case in favour of the petitioner."
4.Essentially, it is petition against denying amendment in the pleadings. What appears that the plaintiff has filed Regular Civil Suit No.241 of 2012 before the learned Civil Court, Surat seeking following reliefs :-
"(1)As per the aforementioned details of the Plaintiff, all of the easement rights of the Plaintiff upon the property bearing Ward No.9, City Survey No.1341 and 1614 in connection with the suit property bearing Entry No. 9/1342 as well as all the rights of the Plaintiff as the legal and linear heir being the grandson of Late Mohanlal Harjivandas Mehta are prevailing without any restriction for more than 60 years and that the suit property does not have any wall and since there is only one wall in the property of the Plaintiff, such permanent legal order may be passed for the Respondents that the Respondents shall not cause any damage to the wall of the Plaintiff and the Respondents shall not cause or make to be caused any type of interference, obstruction, disturbance in any of the legal rights of easement of the property under direct possession and usage of I the Plaintiff or cause any reduction therein.
(2)Kindly declare that the Plaintiff has all the easement rights of the impugned suit property bearing Entry No. 9/1342 and all the legal rights-authority as the legal and linear heir being the grandson of Late Mohanlal Harjivandas Mehta constantly prevailing for more than 60 years. It is extremely necessary that a permanent order in favour of the Plaintiff may be passed that the Respondents shall not make or cause to be made any type of changes or construction in the impugned property bearing Entry No. 9/1342 of the suit property, that they shall not tamper with or cause to be tampered with the wall, doors and windows, ventilator, passage, terrace and chowk (open area) of the property of the the plaintiff and that they shall keep that entire area open for access to air and light.
(3)Such an injunction order may be passed against the Respondents in this matter that the Respondents in this matter themselves or their agent, power-of-attorney holder or any other persons shall not sell out or transfer or cause to be sold out or transferred to any other person, the entire property or part thereof, situated at Balaji Road of Surat City, bearing Ward No.9, Entry No.1342 or they shall not transfer or assign or cause to be transferred or assigned the same.
(4)Such an order may be passed in favour of the Plaintiff that the Respondents shall not cause any damage to the wall, doors and windows, ventilator, etc. of the Plaintiff’s property or they shall not cause any harm to the easement rights and right of access to the air and light for the property prevailing to be under possession of the Plaintiff and that they shall keep the wall of the Plaintiff’s property safe and maintain the access to the air
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