SHAILESHBHAI HARMANBHAI RATHOD Vs. KANUBHAI BHAGUBHAI RATHOD

JUDGEMENT

(1.) The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:

(2.) The case of petitioners is that the petitioners have filed Regular Civil Suit No.176 of 2007 before the learned Civil Court at Borsad for declaration and seeking partition of ancestral property in the suit land in question and sought 1/4 share from said ancestral property. Later on, an account of separation of the Court from Borsad to Anklav, the suit came to be transferred and was renumbered as Regular Civil Suit No.400 of 2013. The case of the petitioners is that the declaration for dividing ancestral property, which is essentially described in paragraph No.2 of the suit, was in the process of adjudication during which it has been found that there is one another ancestral portion of land bearing revenue survey No.398 hector 0-33-39 Are situated at village Ambali and as such to add the said portion of land bearing survey No.398 as item No.8 in the paragraph No.2 of the suit and therefore, amendment application was submitted under Order 6 Rule 17 of the Code of Civil Procedure which was registered as Exh.43. The said amendment application was submitted with a view to avoid multiplicity of proceedings, but the learned trial Judge without appreciating the very object of Order 6 has rejected vide order dated 17.12.2018 which is made the subject matter of present petition.

(3.) Learned advocate Mr.N.D.Songara appearing for the petitioners has submitted that while passing the impugned order below Exh.43, the learned trial Judge has not kept the object of Order 6 Rule 17 of the C.P.C. in mind and has erroneously exercised the discretion, hence, such material error in exercising jurisdiction deserves to be corrected. It has further been contended that insertion of another revenue survey number i.e. land bearing survey No.398 is ancestral property, if to be inserted in the present proceedings no prejudice is likely to be caused and apart from that the same would avoid multiplicity of proceedings. As a result of this, the order rejecting request is required to be set aside. It has further been contended that while passing the impugned order, no adequate reasons are assigned sufficient enough to sustain the conclusion. Hence, such order may not be allowed to stand in the eye of law. By raising such brief contentions, a request is made to allow the petition by setting aside the impugned order. No other submissions have been made.