MEENABEN RAMKUMAR SAROJ Vs. AMBALAL SOMABHAI PARMAR

JUDGEMENT

(1.) The present petition under Articles 226 and 227 of the Constitution of India is filed by the petitioners - original plaintiffs for seeking the following reliefs :? "7(A) Your Lordships may be pleased to admit and allow this petition;

(2.) The case of the petitioners is that Regular Civil Suit No. 1109 of 2001 is filed by the petitioners in the court of learned Civil Judge, (Senior Division), Vadodara for seeking declaration and injunction to the effect that the petitioners since are the sole owners and occupiers of the suit property, and alone have the right to use the property, the respondents - original defendants be restrained from disturbing the petitioners and permanently by restraining from transferring, alienating the suit property without the consent of the petitioners. Along with that on 31.12.2003, an injunction application was also preferred by the petitioners at Exhibit?55 which came to be partly allowed by directing the parties to maintain status?quo of the suit property till the final disposal of the suit. During the pendency of the proceedings, the petitioners preferred an application at Exhibit?99 on 14.09.2018 for seeking amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure which was contested by the opponents by submitting reply which is Exhibit?101. The court below vide order dated 18.01.2019 was pleased to reject the application and thereby prevented the petitioners from amending the plaint i.e. Regular Civil Suit No. 1109 of 2001. It is this order which is made the subject matter of the present petition under Articles 226 and 227 of the Constitution of India.

(3.) Learned advocate Mr. J.B. Dastoor appearing on behalf of the petitioners has submitted that the husband and the father of the petitioners allegedly have executed the power of attorney along with notarized agreement to sale and on that basis, the defendants have allegedly paid the sale consideration of Rs.6 lakhs to the father of the petitioners and by virtue of which the sale deed was to be executed at later point of time. It is contended that no prudent man would sit silent after paying such a sizable amount of sale consideration and would remained dormant for all these years. It has been contended that thereafter, a plea which has been put up by the respondents - defendants about the payment of entire agreed sale consideration before the execution of the registered sale deed is fabricated story put up by the defendants. It has further been contended that the document in question which is sought to be relied upon is unregistered document and the law on the issue is that any property if to be transacted having value of more than Rs.100/? must be compulsorily registered, else, the same may not be admissible in evidence and here also while passing the impugned order, the court below has not appreciated this aspect. Learned advocate Mr. Dastoor has further submitted that irrevocable power of attorney appears to have been allegedly executed in favour of the respondents - defendants on 22.07.1999. Further the father and the husband of the petitioners expired on 30.07.1999. As a result of this, the stand of the respondents is not possible to be accepted, particularly, when such power was not exercised during the lifetime of Ramkumar Subran Saroj. The court below ought to have appreciated that since these issues are touching to the root of the case, the application ought to have been considered in view of the settled position of law. Learned advocate Mr. Dastoor has further submitted that Order 6 Rule 17 of the Code of Civil Procedure is aimed at protecting the legitimate rights of the litigant, and any material if touches to the root of the case, is always to be permitted, particularly, when the interest of justice demands and here is a case in which also the application which has been submitted is expedient in the overall interest of the parties to the proceedings and the same would be of an assistance to the court below to arrive at a just decision. Non granting of such request would have affected prejudicially the rights of the petitioners. Resultantly, the impugned order be quashed and set aside in the interest of justice. Ultimately, after submitting two decisions, one is in the case of Pankaja and Anr., v. Yellappa (D) by L.Rs. and Ors., reported in AIR 2004 SC 4102 and another in the case of Vineet Kumar v. Mangal Sain Wadhera reported in AIR 1985 SC 817, a contention is raised that keeping in view the proposition of law laid down on Order 6 Rule 17 of the Code of Civil Procedure, the relief prayed for in the petition be granted in the interest of justice. No other submissions have been made.