Allowed

Ramesh Kedarnath Sharma v. Omprakash Sohanlal Jadav

Gujarat HC14 Jun 2018SCA/13450/2014

Case brief

AI extract

What is this about?

The High Court of Gujarat allowed an appeal against the rejection of an amendment application under Order 6 Rule 17 CPC. The court quashed the lower order and directed the addition of a new defendant to the rent suit to address non-joinder objections.

What did the court decide?

Quashed the order dated 28.06.2014 rejecting the amendment. Allowed prayers to add paragraph 5(A) to the plaint and join Gangaben Jain as Defendant No. 3.

Ramesh Kedarnath Sharma Vs Omprakash Sohanlal Jadav — Specific Performance | Gujarat HC (2018)

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C/SCA/13450/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 13450 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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RAMESH KEDARNATH SHARMA

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Versus

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OMPRAKASH SOHANLAL JADAV

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Appearance:

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MR ZUBIN F BHARDA(159) for the PETITIONER(s) No. 1 MR KUNJAL D PANDYA(2259) for the RESPONDENT(s) No. 2 NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1 SERVED BY RPAD (R)(66) for the RESPONDENT(s) No. 1

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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, is filed by the petitioner
who was the original plaintiff. The application
Exhibit 25 was filed by the petitioner seeking
amendment of the plaint in Small Cause Suit No.
76 of 2012.

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Page 1 of 5

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C/SCA/13450/2014 JUDGMENT

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2. The facts in brief are as under:

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2.1The petitioner filed aforesaid suit praying
for declaration and permanent injunction that he
may not be dispossessed in respect of shop No.5
situated at Udhna, Udhyog Nagar Sangh, Surat. It
was the case of the petitioner that the father of
respondent No.2, Shri. Roshanlal had given the
said shop on rent. The petitioner was running a
hair cutting salon in the name and style of
Ganesh Hair Art. The petitioner further stated in
the plaint that on the death of Roshanlal,
respondent No.1 Omprakash entered as an owner.
Apprehendingforcefuldispossessionfrom
respondent No.1, the rent suit was filed.

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2.2The respondents filed a joint written
statement Exhibit 17. In the written statement so
filed,itwasthecaseofthe
respondents/defendants that the original owner of
the shop was one Vinod Patel from whom the
respondent No.1 had purchased the shop and
thereafter the shop was further sold to one
Gangaben Roshanlal Jain. Gangaben Jain in turn
had handed over the shop to one Tulsiram Borse.

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2.3In the written statement, a specific
contention was raised by the defendants that the
plaintiff’s suit was defective on the ground of
misjoinder of parties, as Gangaben Jain was not

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Page 2 of 5

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C/SCA/13450/2014 JUDGMENT

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joined as a defendant. Faced with this Situation,
petitioner plaintiff filed an application Exhibit
25 under Order 6 Rule 17 of the Code of Civil
Procedure, 1908 before the Court of the learned
Additional Small Cause Judge, Surat. In the
amendment application so filed, the plaintiff
requested the Trial Court to add paragraph 5(A)
pleading that original defendant No.2 was the son
of Gangaben Jain. He therefore, not only wanted
to add Gangaben Jain as defendant No.3 but also
make averments in the plaint pleading that the
defendant No.1 himself was the owner and
collected rent on behalf of defendant No.3.

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2.4Therefore, only on the basis of disclosure of
the name of Gangaben Jain in the written
statement, the petitioner sought an amendment in
the plaint to add averments in connection with
Gangaben Jain and also add her as defendant No.3.

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2.5Learned Trial Judge by his order dated
28.06.2014, rejected the application for
amendment. The ground of rejection was that
petitioner was not in a position to prove title
or ownership of the shop and therefore, Gangaben
Jain could not have been joined.

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3.Mr.Zubin Bharda, learned counsel for the
petitioner submits that the learned Judge
committed an error in rejecting the amendment
application. He submits that the petitioner was

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Page 3 of 5

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C/SCA/13450/2014 JUDGMENT

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constrained to move the amendment only because
the defendants made disclosure in the written
statement providing certain information. In order
to overcome the objection of the defendant for
non-joinder of proper party, averments concerning
the newly added defendant and the addition of
Gangaben Jain as defendant No.3 was necessary.

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4.Mr. Kunjal Pandya, learned advocate for the
respective parties has supported the order passed
by the learned Trial Court.

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5.Having considered the submissions of learned
advocates for the respective parties and reading
the application filed for amendment under
provisions of Order 6 Rule 17 of the Code of
Civil Procedure, it is apparent that because of
the contentions raised in the written statement
filed by the defendants suggesting transfer of
ownership of the shop in favour of Gangaben Jain
and because of the objection of she being not a
party to the suit that the petitioner was
constrained to move the application.

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6.The petitioner was constrained, therefore, to
amend the plaint as it became necessary for the
purpose of determining the real question between
parties. Had the plaintiff not moved the
amendment, he would not have overcome the
objection raised in the written statement by the
defendant regarding non-joinder of Gangaben Jain.

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Page 4 of 5

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C/SCA/13450/2014 JUDGMENT

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Admittedly, when such objection was raised, the
petitioner moved such an amendment and also made
averments in the plaint praying for adding
paragraph 5(A) which in amendment could have been
done so as to alter the contents of the suit.

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7.Having considered the issue as aforesaid, I
am of the opinion that the learned Trial Judge
ought not to have rejected application below
Exhibit 25 filed by the petitioner in Small Cause
Suit No.76 of 2012.

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8.Accordingly the order dated 28.06.2014 passed
by the learned Additional Judge Small Causes
Court rejecting application below Exhibit 25 in
Small Cause Suit No.76 of 2012 is quashed and
set aside. Prayers made by the petitioner-
plaintiff in application below Exhibit 25 to add
paragraph 5(A) in the plaint and join Gangaben
Jain as Defendant No.3 is allowed. The petitioner
is permitted to amend the plaint accordingly.
The suit shall proceed after such amendment has
been carried out as directed herein above. Rule
is made absolute accordingly with no order as to
costs.

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(BIREN VAISHNAV, J)

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N.V.MEWADA

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Page 5 of 5

Ramesh Kedarnath Sharma v. Omprakash Sohanlal Jadav

Case brief

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Ramesh Kedarnath Sharma v. Omprakash Sohanlal Jadav

Case brief

What is this about?

What did the court decide?

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