KAILASHBEN ARUNKUMAR PRAJAPATI vs LH OF DECD SANDIPKUMAR FATEHSINH VASAVA

C/SCA/11470/2024 JUDGMENT DATED: 16/10/2026
(GJHC240302552024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11470 of 2024

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
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KAILASHBEN ARUNKUMAR PRAJAPATI & ANR.
Versus
LH OF DECD SANDIPKUMAR FATEHSINH VASAVA & ORS.
================================================================
Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1,2
MR V Z BHARDA(12667) for the Petitioner(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 1.1,1.2,1.3,1.4
MR VASHISTHA M JOSHI(8972) for the Respondent(s) No. 1.1,1.2,1.3,1.4
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 16/10/2026

JUDGMENT
1. Heard Mr. V. Z. Bharda, learned advocate for the
petitioners and Mr. Vashistha M. Joshi, learned advocate
for the respondents.
2. The present petition is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
“(A) Your Lordships may be pleased to issue a writ of certiorari or a
writ in the nature of certiorari or any other appropriate writ, order or
direction, quashing and setting aside the impugned order dated
02.03.2024 passed by the learned 24th Additional Chief Judicial
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Magistrate, Vadodara, in Special Civil Suit No. 442 of 2014 and
further be pleased to allow the amendment application filed below
Exhibit 104 (at Annexure-A colly hereto);
(B) During the pendency and final disposal of the present petition,
YOUR LORDSHIPS may be pleased to stay the further proceedings of
Special Civil Suit No. 442 of 2014 pending before the 24th Additional
Chief Judicial Magistrate, Vadodara;
(C) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case.”
3. The petitioners herein are original plaintiffs and the
respondents herein are legal heirs of original defendants.
For the sake of convenience and brevity, the parties
herein after will be referred to as plaintiff and defendant.
SHORT FACTS:
4. The plaintiff instituted a recovery suit being Special
Civil Suit No. 442 of 2014 against the defendant. The suit
was originally filed to recover a sum of Rs.31,22,659/-. It
seems that the defendant issued cheques in favour of
plaintiff, which were dishonoured. The plaintiff has
incorporated the details of such cheques issued by the
defendant in the plaint and sought recovery by way of the
said suit. Since some of the cheques were dishonored and
its amount was around Rs.24,75,000/-, prior to filing of
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the said suit, in the year 2012, the plaintiff instituted a
criminal complaints under Section 138 of Negotiable
Instruments Act, 1881 (herein after referred to as “ the
Act, 1881” ) against the defendant. The defendant
acquitted by the Trial Court. The plaintiff preferred
acquittal appeals being Criminal Appeal Nos. 1672 of
2017 and 1673 of 2017 before this Court, which were
allowed by learned single judge of this Court vide its CAV
common judgment dated 14.06.2018. The operative
portion of the aforesaid judgment read thus:
“8. Resultantly, both the appeals succeed and are ALLOWED. The
impugned judgments and orders passed by the trial Court in Criminal
Case No. 49753 of 2012, Dated: 17.06.2017, so also in Criminal Case
No. 2420 of 2013, Dated: 17.06.2017, are QUASHED and set aside.
8.1 So far as Criminal Appeal No. 1672 of 2017 is concerned, the
respondent-accused shall pay total sum of Rs.10,00,000/- (TEN LAKH)
lakh towards the amount of fine, within a period of SIX WEEKS from
the date of receipt of a copy of this order, failing which he shall
undergo rigorous imprisonment for one year. Out of the said amount,
the appellant, therein, shall be paid compensation of Rs.10,00,000/-
(TEN LAKH) by way of an account payee cheque.
8.2 So far as Criminal Appeal No. 1673 is concerned, the respondent
shall pay the amount of Rs.16,00,000/- (SIXTEEN LAKH) towards the
amount of fine, within a period of SIX WEEKS from the date of receipt
of a copy of this order, failing which he shall undergo rigorous
imprisonment for one year. The amount of compensation to be paid to
the appellant shall be Rs.15,00,000/- (FIFTEEN LAKH) by way of an
account payee cheque.”
(Emphasis supplied)
5. Thus, in view of the aforesaid judgment and order
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passed by this Court, the defendant was required to pay
total compensation of Rs. 25,00,000/- to the plaintiff. The
defendant challenged the aforesaid judgment and order
passed by this Court before the Hon'ble Apex Court by
way of Special Leave to Appeal (Criminal)
Nos.5864-5865/2018. The original defendant - accused
died during the pendency of the aforesaid appeal on
14.05.2021, the said appeals were dismissed as abated by
the Hon'ble Apex Court vide its order dated 23.08.2021.
The order reads thus:
“Mr. D. N. Ray and Mr. Shushil R. Shukla, learned Advocates appearing
for the petitioner submit that the petitioner died as a result of COVID-19
pandemic on 14.05.2021.
Statement is recorded.
The Special Leave Petitions are dismissed as abated.
Pending applications, if any, also stand disposed of.”
6. After passing of the aforesaid order by the Hon'ble
Apex Court, the plaintiff filed the impugned amendment
application below Exh. 104 in the pending suit on
17.09.2022, whereby requested the Trial Court to allow
him to amend the plaint and sought recovery of amount of
compensation awarded by this Court, i.e., Rs.26,00,000/-
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with interest thereon plus advocate expenses of
Rs.8,50,000/- incurred by him up to Hon’ble Apex Court.
By way of the impugned amendment application, the
plaintiff prayed for amendment of the claim amount
sought to be recovered from the defendant. Now, the
plaintiff is claiming that he is entitled to recover
Rs.78,85,659/- instead of Rs.31,22,659/-. The defendant
objected the impugned amendment application by filing
the reply. After hearing the parties, the Trial Court vide
its impugned order dated 02.03.2024 rejected the
impugned amendment application. Hence the present
petition.
SUBMISSIONS OF THE PETITIONER – PLAINTIFF:
7. Mr. Bharda, learned advocate for the petitioner –
plaintiff, would submit that the amendment sought for by
the plaintiff ought to have been allowed by the Trial Court
as due to subsequent event which has taken place,
whereby the plaintiff is entitled to recover an additional
amount. It is submitted that the amount of compensation
awarded by this Court to the plaintiff remained
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undisturbed due to dismissal of the appeals filed by the
original defendant - accused by the Hon'ble Apex Court. It
is further submitted that the plaintiff is also entitled to
recover legal expenses borne by him from the defendant.
7.1. Mr. Bharda, learned advocate, would further submit
that due to the aforesaid development which has taken
place during the pendency of the suit, the plaintiff is
entitled to recover an additional amount from the
defendant, which could not have been disallowed by the
Trial Court. It is submitted that by allowing the
amendment, neither the nature of the suit gets changed
nor any prejudice would cause to the defendant. It is
further submitted that as per the settled position of law,
all the amendments should be ordinarily allowed unless it
is specifically barred in law.
7.2. Mr. Bharda, learned advocate, would further submit
that as per settled law, the real controversy test is the
cardinal test and it was a duty of the Trial Court to see as
to whether the amendment sought is necessary to decide
the real dispute between the parties. It is further
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submitted that there is no deliberate negligence on the
part of the plaintiff not to incorporate the claim which is
sought to be incorporated by way of amendment,
inasmuch as at the time of institution of the suit, the
criminal proceedings were pending before the Court
concerned.
7.3. To support his submissions, he would rely upon the
decision upon these three judgments.
1. Rajesh Kumar Aggarwal & Ors. Vs. K. K.
Modi & Ors. reported in (2006) 4 Supreme
Court Cases 385.
2. Haramani Sahoo & Ors. Vs. Lalita Nayak &
Ors. reported in ( 2026) INSC 1112.
3. Smt. Mona Grewal Vs. Karan Singh Grewal
& Ors. reported in (2015) SCC OnLine Cal
6527.
7.4. By making the above submissions, Mr. Bharda,
learned advocate for the petitioners, would request this
Court to allow the present petition.
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SUBMISSIONS OF THE RESPONDENT –
DEFENDANT:
8. Per contra, Mr. Joshi, learned advocate appearing for
the respondent – original defendant, would support the
impugned order. It is submitted that there is no error
much less any gross error of law committed by the Trial
Court while rejecting the amendment application.
9. No other and further submissions have been
advanced by learned advocates for the respective parties.
ANALYSIS AND REASONS:
10. Having heard learned Counsels for the respective
parties and upon perusal of the impugned amendment
application and also taking into account the aforesaid
facts, prima facie , it appears that the plaintiff instituted a
recovery against the defendant, which includes amount of
the cheques issued by the defendant and were subject
matter of criminal complaints filed by the plaintiff under
Section 138 of the Act, 1881. It is undisputed fact that
this Court found the defendant - accused guilty, thereby
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convicted and awarded a compensation in favour of the
plaintiff. The matter was carried before the Hon’ble Apex
Court by the defendant – accused. Since the original
defendant died during the pendency of the appeal
proceeding instituted by him before the Hon'ble Apex
Court, his appeals were dismissed as abated. Thus, the
order of compensation passed by this Court referred
above remained undisturbed.
11. The plaintiff submitted the impugned amendment
application, whereby he wants a recovery of
compensation amount with interest as well as the
expenses incurred by him towards legal fees. When a
query raised by this Court to Mr. Bharda, learned
advocate for the petitioner, that whether the
compensation amount awarded by the criminal Court can
be recovered by way of any civil suit, Mr. Bharda, learned
advocate for the petitioner is unable to answer and
respond to the query. Nonetheless, Mr. Bharda, learned
advocate for the petitioner, would submit that an amount
of compensation awarded by the Trial Court can be
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recovered as per Section 471 read with Section 461 of
BNSS, 2023 (corresponding to Section 431 read with
Section 421 of Cr.P.C., 1973). When the compensation
amount is already determined by this Court and can be
recovered as per the relevant provisions of BNSS/Cr.P.C.,
no recovery suit can be filed. According to me, the
plaintiff has no right to sue against the defendant so far
as recovery of amount of compensation by filing any civil
suit, inasmuch as the amount of compensation is already
determined by the competent Court as per the provisions
of BNSS Section 395 (Cr.P.C. Section 357).
12. Thus, in view of aforesaid, the amendment which is
sought by the plaintiff cannot be allowed for the simple
reason that the amount of compensation awarded by this
Court in a proceeding instituted by the plaintiff under the
Act, 1881 and he can very well recover the amount as per
the procedure envisaged under the BNSS/Cr.P.C.
13. Moreover, such a claim to recover the compensation
is based upon a different cause of action than a cause of
action for which the suit is instituted by the plaintiff. It is
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settled position of law that if any new case or a new cause
of action for which an amendment is sought for, it would
not ordinarily be allowed. So far as the claim of legal
expenses, etc. is concerned, again it is found on a new
cause of action, inasmuch as such amount incurred by the
plaintiff to prosecute the criminal proceeding before the
different Court of law and it has no direct bearing upon
the claim made in the suit in question.
14. At this juncture, it would be apposite to refer to and
rely upon the decision of Hon'ble Apex Court in case of
Life Insurance Corporation Of India vs Sanjeev
Builders Private Limited reported in (2022) 16 SCC 1 ,
wherein Hon'ble Apex Court has summarized the law so
far as the amendment is concerned. It reads thus:
“70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if
the requisite conditions for application thereof are satisfied and the
field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is,
thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not
cause injustice or prejudice to the other side. This is mandatory, as is
apparent from the use of the word “shall”, in the latter part of Order
VI Rule 17 of the CPC.
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(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication
of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek
to withdraw any clear admission made by the party which confers a
right on the other side and
(c) the amendment does not raise a time barred claim, resulting in
divesting of the other side of a valuable accrued right (in certain
situations).
(iv) A prayer for amendment is generally required to be allowed
unless
(i) by the amendment, a time barred claim is sought to be introduced,
in which case the fact that the claim would be time barred becomes a
relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court
should avoid a hypertechnical approach, and is ordinarily required to
be liberal especially where the opposite party can be compensated by
costs.
(vi) Where the amendment would enable the court to pin-pointedly
consider the dispute and would aid in rendering a more satisfactory
decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional
or a new approach without introducing a time barred cause of action,
the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to
rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the prayer
for amendment could be allowed and the issue of limitation framed
separately for decision.
(x) Where the amendment changes the nature of the suit or the
cause of action, so as to set up an entirely new case, foreign to the
case set up in the plaint, the amendment must be disallowed . Where,
however, the amendment sought is only with respect to the relief in the
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plaint, and is predicated on facts which are already pleaded in the
plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial,
the court is required to be liberal in its approach. The court is
required to bear in mind the fact that the opposite party would have a
chance to meet the case set up in amendment. As such, where the
amendment does not result in irreparable prejudice to the opposite
party, or divest the opposite party of an advantage which it had
secured as a result of an admission by the party seeking amendment,
the amendment is required to be allowed. Equally, where the
amendment is necessary for the court to effectively adjudicate on the
main issues in controversy between the parties, the amendment should
be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022
SCC OnLine Del 1897)”
(Emphasis supplied)
15. As far as the decisions cited by Mr. Bharda, learned
advocate for the petitioner are concerned, they are not
going to help him in any respect. Rather, the principle
enunciated by the Hon'ble Apex Court in Life Insurance
Corporation of India vs Sanjeev Builders Private
Limited (supra) is also referred to and not disturbed by
the Hon’ble Apex Court in its recent decision in the case
of Haramani Sahoo (supra). In a case of Rajesh Kumar
Agrawal (supra), the facts are very eloquent unlike the
present case. It is held that to resolve the real
controversy, if any amendment is necessary, such
amendment is required to be allowed by the Court. No
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one can dispute such position of law. So far as the case at
hand is concerned, the recovery suit in question
instituted by the plaintiff already covered the cheques
amount which were subject matter of criminal complaints
instituted by him under Section 138 of the Act, 1881,
wherein the compensation awarded. The amendment
sought for is not to resolve the real controversy rather it
is an additional claim made based on different cause of
action.
16. Having considered the aforesaid facts and
circumstances and taking note of the fact that there is no
right to sue available to the plaintiff to recover the
amount of compensation by way of civil suit and assuming
for the time being that such right is available to the
plaintiff, it stands on the different cause of action,
inasmuch as the plaintiff is claiming his right to recover
the compensation on the strength of the order passed by
this Court in a criminal cases instituted against the
defendant and not in relation to the cause of action for
which the suit in question instituted.
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17. Having considered the aforesaid peculiar facts and
circumstances of the case at hand, I am of the considered
view that no fault can be found with the impugned order.
This court is of the considered view that the plaintiff is
not entitled to recover the amount of compensation by
way of the recovery suit. So far as the recovery of the
legal expenses incurred by the plaintiff is concerned, it
stands on a different cause of action for which he is
required to file another suit. In view of the aforesaid, the
amendment cannot be allowed as prayed for by the
plaintiff, and the Trial Court has correctly rejected the
impugned delay application.
18. In view of the foregoing discussions and reasons, I
do not find any merit in this petition. Accordingly, it is
dismissed. Notice is discharged. No order as to costs.
(MAULIK J.SHELAT,J)
SHAHANAZ
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