MERUBHAI MOHANBHAI Vs. BABUBHAI LAXMANBHAI LATHIYA

JUDGEMENT

(1.) PETITIONERS herein are the original defendants of Special Civil Suit No. 73/98. They have challenged the order of the learned Civil Judge allowing the application preferred vide exh.59 by its order dated 23 rd September, 2011, whereby it permitted the amendment of the plaint to the original plaintiffs-respondent No.1 & 2 herein.

(2.) LEARNED advocate Mr.B.M.Mangukiya appearing for the petitioner has fervently submitted that the amendment sought for is ex-facie time barred and fresh suit cannot be preferred on the basis of averments set- out in the application for amendment. He further urged that from the time respondents preferred this suit, he was aware of the details and yet for the reasons best known to him, when they chose not to challenge the subsequent registered sale deed of the year 1998, such amendment which changes the very nature of the suit and seriously prejudice the rights of the petitioners aught not to be allowed at a such belated stage. He has relied upon the following judgements to substantiate his version:

(3.) AT the outset, it needs to be noted that before filing of this petition the order passed on 23 rd September, 2011 is already implemented. As rightly pointed out by learned advocate for the respondents that Order VI Rule 18 of CPC requires to carry out the amendment within 14 days if no time is prescribed in the order by the Court concerned. Thus, statutorily within the period specified, it appears that the respondents -plaintiffs have already carried out the same . It is also to be noted that written statement to the amendment plaint has also been filed by these petitioners on 22nd February, 2012 which is done pending this petition.