RAMESH DEVJI VARSANI Vs. KESARBAI DEVJI PATEL

JUDGEMENT

(1.) The present petition is filed under Article 227 of the Constitution of India by challenging the order dtd. 30/9/2023 passed below Exh.57 application in Regular Civil Suit No.438 of 2005 by the learned Principal Civil Judge, Bhuj - Kachcha, whereby amending, sought in the plaint by the plaintiff, is rejected.

(2.) Brief facts of the case are as such that the plaintiffs have filed the suit by seeking prayers in the plaint that the document, which is registered before the Sub-Registrar, is required to be cancelled, and accordingly, petitioners have sought declaration in the suit. The plaintiffs have specifically averred in the suit that the land pertains to Village Sukhpar admeasuring Revenue Survey No.754/1, 4.27 acre and the land is now converted to non-agricultural land, which is known as Ambikanagar-2 admeasuring total area of 18,900 sq.m. The petitioners, being heir of his father - deceased Swadevji Kanji who has holding the said land, are entitled to the share as total property in question. There are 8 heirs of the deceased - Swadevji Kanji. The petitioners have prayed that the sale deed executed on 17/12/1993, which is about the suit property, is sought to be cancelled and also further sought for partition of the property in question by parting 7/8 th portion of the land.

(3.) Heard leaned advocate Mr. Ankit Y. Bachani for the petitioners. He has submitted that impugned order passed by the learned trial Court is highly erroneous, unjust and improper. He has further submitted that the learned trial Court has erroneously considered the pleadings of the parties and more particularly, documentary evidence which is annexed with the suit, wherein it is clearly mentioned that the property, in question, which is challenged in the suit, is of Bhuj, and therefore, amendment is required to be granted by exercising the power under Order VI Rule 17 of the Code of Civil Procedure, 1908. He has further submitted that the amendment can be granted at any stage of time irrespective of the time period spent, if the plaintiffs can make out the case on merits. He has further submitted that the plaintiffs cannot have any personal intention in committing such error in describing the location of the property. He has further submitted that such mistake is occurred due to typographical error which is required to be amended in the larger interest of justice. He has further submitted that if such amendment is not granted, it will lead to the multiplicity of the proceedings. He has further submitted that due to mistake on the part of the lawyer in drafting the plaint, the party should not suffer.