PATEL KAMLABEN KUBERBHAI Vs. PATEL MULJIBHAI KUBERBHAI

JUDGEMENT

(1.) REJECTION of the plaintiffs' application Exh. 149 for amendment in the plaint of Regular Civil Suit No. 73/2001, by the learned Principal Senior Civil Judge, Modasa by order dated 13.3.2009, has given rise to the present petition filed by the original plaintiffspetitioners.

(2.) THE suit property is situated at village Dhansura. It is a part of survey No. 457. The petitioners claim that the suit property is ancestral property and they have 1/4th share therein. Broadly seen, in the suit the plaintiffs have prayed for declaration and permanent injunction on the ground that the suit property is unalienable property. The plaintiffs have also prayed that the sale deed executed by defendant No.1 in favour of defendant No.2 be declared as null and void. Thereafter, through amendment application, the petitionersplaintiffs sought permission to introduce/add a prayer in the suit plaint to the effect that the plaintiffs have prior right to purchase the suit property. The learned trial Court was pleased to reject the amendment application, mainly on the ground that the plaintiffs have not pointed out that why they could not file the amendment application earlier by showing due care and diligence. That considering the prayer made by the plaintiffspetitioners in the plaint, it was within the knowledge of the plaintiffs that the sale deed was already executed. Therefore, it is not possible to believe that the plaintiffs were not aware about execution of the said document by the defendants. Relying on the case laws cited before it, the learned trial Court was pleased to reject the amendment application. Statutory amendment in Order 6 Rule 17 CPC had also weighed with the trial Court.

(3.) HEARD learned advocate Mr. Parikh for the petitioners and learned advocate Mr. Ankit Shah for the respondents.