Legal Heirs of Deceased Amrutlal Hemchand Mehta and Others vs Legal Heirs of Deceased Jayshanker @ Batukbhai M Oza and Others

K.S. Jhaveri, J.—By way of present petition, the Petitioners have challenged the order dated 17.01.2006 passed by the learned Principal Senior Civil Judge, Anjar-Kachchh below Exh. 145 in Special Civil Suit No.106 of 1995 whereby the learned Judge has rejected the application of the Petitioners to recast the issues.

The Petitioners are the original Plaintiffs and the Respondents are the original Defendants in Special Civil Suit No. 188 of 1992 which came to be filed before the Court of Civil Judge (S.D.), Bhuj-Kutch which subsequently came to be transferred to the Court of Civil Judge (S.D.), Anjar-Kutch and was numbered as Special Civil Suit No. 106 of 1995 pending before the Civil Court at Anjar. The suit was filed by the Plaintiffs for specific performance against the Defendants at Bhuj-Kutch in respect of the contract between the original Plaintiff and Defendant. In the year 1995 the suit came to be transferred to Anjar-Kutch. The suit was proceeded from time to time. The suit property collapsed in the Earth quake occurred in Gujarat State in the year 2001. When the Government allotted alternative plot against the suit plot, the Plaintiffs gave an application to amend the plaint and the same was granted. Thereafter, in the year 2005, the Petitioners gave an application to re-cast the issues in view of amendment allowed by the Court. The said application was rejected vide order dated 17.01.2006. Hence, this petition.

Learned advocate for the Petitioners submitted that the suit was filed for specific performance of contract between the parties and the Plaintiffs had performed their part of contract and they were required to make remaining payment of property in question which they were and are willing to make the same. Since the nature of suit property had also changed and plot area of the property allotted in lieu of suit property was less and also due to the fact that the Defendants have sold out the valuable things which were forming part and parcel of the suit property it has caused great loss to the Petitioners and hence the issues as suggested by the Plaintiffs as per the pleadings made in the amended plaint were required to be framed and considered by the trial Court to adjudicate the real dispute between the parties.

As a result of hearing and perusal of the documents on record it is found that issues were framed at Exh. 67 on 06.04.1988.Thereafter, the trial Court has recast the issues on 07.03.2005. The Petitioners have preferred application after a period of eight months which is not permissible. From the application preferred by the Petitioners, it seems that the suit was filed on 23.12.1994. The suit was filed for specific performance of the contract in respect of the suit property between the parties. The Petitioners preferred the amendment application in the suit which was granted. The suit was amended wherein it is specifically mentioned by the Petitioners that the suit property had collapsed in the Earthquake and the Government allotted new land under the New Town Planning Scheme. The area of suit property was 301. 48 square meters wherein the area of now allotted land is 253.20 square meter. The trial Court considering the provisions of Contract Act, 1972 and Section 53(A) of the Transfer of Property Act, rejected the application for recasting the issues preferred by the Petitioners. Hence, as the suit is for specific performance of the contract between the parties, the Petitioners are not entitled to claim any other relief.

For the foregoing reasons, I am of the opinion that the view taken by the trial Court is just and proper. The petition is dismissed. Rule is discharged with no order as to costs.

However, it will be open for the Petitioner move appropriate application under the provisions of Order 14 Rule 5 of the CPC Code.