U. V. DESAI Vs. SURESHBHAI INDUBHAI DESAI

JUDGEMENT

(1.) The present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India challenging the impugned order dated 30.07.2019 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Anand (hereinafter be referred to as "the Trial Court") below application Exhibit 71 moved in Civil Case No.54 of 2018 (Old Special Civil Suit No.229 of 2011), whereby the application of the petitioner for giving description of the suit property in the plaint came to be rejected.

(2.) Brief facts of the present case are that the petitioner has instituted Special Civil Suit No.229 of 2011 against the respondent herein before the Civil Court, Vadodara inter alia seeking prayer that the defendant be directed to handover the suit property to the plaintiff. It is alleged that the father of the plaintiff is the owner of the suit property in question and the suit property is given Municipal No.1153 and property No.5/6/60, It is alleged that the another Civil Case No.391 of 2011 was also pending between the parties. According to him, in Special Civil Suit No.229 of 2011, the defendant had appeared and filed written statement. It is alleged that Special Civil Suit No.229 of 2011 was re-numbered as Civil Case No.54 of 2018 wherein issues were framed and the plaintiff has produced oral evidence which was cross-examined by other party. It is alleged that as there was incomplete description of the property in the plaint, the petitioner has moved an application on 10.05.2019 purportedly under Order VII Rule 3 read with Section 151 of the Civil Procedure Code for proper identification of the suit property by giving the complete description. It is alleged that by filing the application, permission of the Court was sought to describe the suit property with four dimensions. It is alleged that the said amendment would be in consonance with the description given in Civil Suit No.391 of 2011 filed by the same party. It is alleged that this very application has been rejected by the Trial Court. It is further alleged that the Trial Court has not considered the fact that by such amendment, the nature of the suit was not going to be changed and no prejudice was liable to be caused to the defendant as amendment was just to correct typographical error. It is submitted that if the description of the suit property is not corrected, then, great difficulty may be caused to the plaintiff at the time of execution of decree, if the plaintiff succeeds in the suit. It is further alleged that in order to avoid multiplicity of proceedings, the application of the petitioner was required to be allowed. It is alleged that the contentions of the petitioner were not dealt with while passing the impugned order. While referring to the decision of the Apex Court reported in AIR 2019 SC 1186, the petitioner has submitted that the decision in the nature of typographical error is required to be granted. On all these grounds, the petitioner has prayed to quash and set aside the impugned order of the Trial Court and allow its application for amendment of the plaint.

(3.) The respondent has filed affidavit-in-reply wherein he has denied the contents of the petitioner and has stated that in the suit proceedings, issues were framed, evidence part was over, final arguments were also made and only reply to arguments made by the respondent was to be addressed by the petitioner and at this stage, the petitioner in the suit proceedings came up with an application at Exhibit 71 under the provisions of Order 7, Rule 3 read with Section 151 of the Civil Procedure Code, 1908. It is further stated in the reply that after hearing both the sides, the Trial Court has rejected the application at Exhibit 71 with good and sound reasons and that order is sustainable in the eyes of law. It is stated that it is clear that the application to include description of the suit property was purposefully not averred at the time of institution of the suit and the application has been moved at the time of arguments when defendant has disclosed his defence by crossexamination. It is alleged that the writ of certiorari cannot be granted against the order of the Civil Court as the Civil Court has not amenable to a writ of certiorari in view of the decision of the Apex Court in the case of Radhey Shyam and another Vs. Chhabi Nath and others, 2015 5 SCC 423. It is stated that the decisions relied upon by the petitioner i.e. AIR 2019 SC 1186 is in the different set of facts and circumstances and it is not applicable to the facts of the present case. It is further stated that there is no typographical or inadvertence mistake. According to the respondent, it will cause prejudice to the respondent as it has disclosed the defence and, therefore, it is prayed to dismiss the present petition.