Allowed

Amrutbhai Arkhabhai Chamar v. Dhanabhai Dahyabhai Chamar Since Deceased- Heir of Dahyabhai Jethabhai Chamar

Gujarat HC14 Jun 2018SCA/11474/2014

Case brief

AI extract

What is this about?

Single judge Supreme Court Special Civil Application wherein the High Court of Gujarat allowed an application to amend the plaint to add a prayer for removal of illegal construction commenced by respondents during the pendency of the suit, quashing the trial court's rejection order.

What did the court decide?

The order dated 19.06.2014 in R.S. No.136 of 2008 rejecting amendment application was quashed; petitioner permitted to amend plaint.

Amrutbhai Arkhabhai Chamar Vs Dhanabhai Dahyabhai Chamar… — Property and Title | Gujarat HC (2018)

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C/SCA/11474/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 11474 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV Sd/-

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2	To be referred to the Reporter or not ?	No
3	Whether their Lordships wish to see the fair copy of the judgment ?	No
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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AMRUTBHAI ARKHABHAI CHAMAR

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Versus

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DHANABHAI DAHYABHAI CHAMAR SINCE DECEASED- HEIR OF DAHYABHAI JETHABHAI CHAMAR

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==============================================================

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Appearance:

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MR DHARMESH R PATEL(5592) for the PETITIONER(s) No. 1 RULE SERVED(64) for the RESPONDENT(s) No. 1.1,1.2,1.3,2,3,4

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 14/06/2018 ORAL JUDGMENT

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1.This petition under Article 227 of the
Constitution of India, challenges the order dated
19.06.2014 passed below Exh.64 in Regular Civil
Suit No.136 of 2008. The suit was filed by the
petitioner for permanent injunction. It was the
case of the petitioner before the trial Court and

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Page 1 of 4

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C/SCA/11474/2014 JUDGMENT

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accordingly, the petitioner had prayed that the
petitioner was owner of certain plot of land and
was enjoying the peaceful possession after
building the house. It was prayed that the
defendant be restrained from entering into the
land and the premises and in any way obstructing
and/or constructing in the said land.

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2.Below the application Exh.5 filed by the
petitioner, the learned trial Court by an order
dated 10.10.2007, allowed the application
restraining the respondents/defendants from
entering into the disputed land and making
construction.

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3.Since the respondents /defendants started
making construction, the petitioner was
constrained to move an application Exh.22 under
Order 39 Rule 2(A) of the Civil Procedure Code,
1908, by an order dated 08.02.2013. The Court
ordered 15 days civil imprisonment against the
respondents/defendants.

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4.Sincetherespondents/defendantsmade
construction in the margin land of the
petitioner, the petitioner was constrained to
move an application under Order 6, Rule 17 of the
Civil Procedure Code, inter-alia, praying that he
may be permitted to amend the plaint, as well as

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Page 2 of 4

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C/SCA/11474/2014 JUDGMENT

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the prayer clause, which was necessary in order
to add the prayer of removal of such illegal
construction.

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5.Learned trial Judge in such application below
Exh.64 has rejected the application on the ground
that it went beyond the suit as originally
framed.

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6.Aggrieved by this order dated 19.06.2014, the
petitioner is before this Court. Mr. Dharmesh
Patel, learned advocate has appeared for the
petitioner. Though served no-one has represented
on behalf of the respondents/defendants. Perusal
of the impugned order, the orders below Exh.5,
Exh.22 and the panchnama clearly suggests that
pending the suit and interim injunction, the
respondents-original defendants carried out the
construction. Perusal of the plaint as originally
filed was with a prayer that the defendants be
restrained from interfering in the possession of
the plaintiff and/or be restrained from making
construction. Despite an injunction in his
favour, the plaintiff suffered inasmuch as, the
defendants continued to make construction. This
compelled him to move an application at Exh.22
under which the Civil Court committed the
defendants to suffer imprisonment for 15 days.
All these facts suggest that apparently, there
was no other alternative for the petitioner/

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Page 3 of 4

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C/SCA/11474/2014 JUDGMENT

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plaintiff but to amend the plaint and add the
prayers by making an application below Exh.64.

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7.Learned trial Judge committed an error in
rejectingsuchapplication,whenthe
petitioner/plaintiff had no other alternative but
to add the subsequent event by way of an
amendment.

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8.Accordingly the order dated 19.06.2014 passed
below Exh.64 in Regular Civil Suit No.136 of
2008, by the Principal Civil Judge, Talod, is
quashed and set aside. The petitioner is

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permitted to amend the plaint in accordance with
the prayers made in the application below Exh.64.
Regular Civil Suit No.136 of 2008 shall proceed
after such amendment, as prayed for by the
petitioner/plaintiff below Exh.64 is permitted to
carried out by the petitioner/plaintiff.

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9.This petition is allowed. Rule is made
absolute accordingly. Direct service is
permitted.

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(BIREN VAISHNAV, J)

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JIGNESH

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Page 4 of 4

Amrutbhai Arkhabhai Chamar v. Dhanabhai Dahyabhai Chamar Since Deceased- Heir of Dahyabhai Jethabhai Chamar

Case brief

What is this about?

What did the court decide?

Amrutbhai Arkhabhai Chamar v. Dhanabhai Dahyabhai Chamar Since Deceased- Heir of Dahyabhai Jethabhai Chamar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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