Final Order 2

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.378 of 2020 In Suit no.6121-2006
MHCC010026362020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 378 OF 2020
IN
SUIT NO.6121 of 2006
Satyapal Ramprakash Khanna …. Plaintiff
Vs.
Vipal Nandkumar Khanna and Anr. ..... Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 7th DAY OF NOVEMBER, 2023
-: Appearances: -
Learned Adv. Prabhu for plaintiff
Learned Adv. Gonsalves for defendant no.1
Learned Adv. Rajeshwar Sakpal for defendant no.2.
ORAL ORDER
The defendant no.1 has taken out present chamber
summons for seeking permission to amend the written statement dated
29/01/2009, as per schedule annexed therewith.
2. In short, it is contention of the defendant no.1 that the
plaintiff has filed present suit against the defendant for declaration that
the Memorandum of Understanding dated 23/06/2004 is valid,
subsisting and is binding on defendants, and the plaintiff is entitled to
have share of his late mother in the suit property as per the said MOU
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to have the share transferred in his favour and for other reliefs.
3. It is contended that issues came to be framed on
18/04/2011. Thereafter, the plaintiff has examined his witnesses.
Thereafter, the matter is fixed for evidence of defendants. As the
defendant no.1 wants to file additional affidavit of evidence, he taken
out notice of motion bearing no. 4089 of 2017. However, it came to be
rejected
vide an order dated 26/09/2019. Therefore, the defendant
no.1 has preferred Writ petition no. 627 of 2020 challenging the said
order dated 26/09/2019. The said writ petition came to be disposed of
with liberty to file notice of motion for making changes in written
statement.
4. It is further contention of the defendant no.1 that the
owner and landlord of immovable property admeasuring 4000 sq.fts.,
which is subject matter of MOU had filed suit against the plaintiff and
defendants in the Small Causes Court at Mumbai being TE Suit no.
11/2016. In the said suit Consent Terms were filed in between the
parties thereby the plaintiff and defendants have surrendered their
rights. Accordingly, Consent decree came to be passed on the basis of
consent terms on 01/07/2016.
5. It is further contended that in respect of property described
in schedule I to MOU dated 23/06/2004, the suit bearing no. 487/898
of 2000 came to be filed in Small Causes Court at Mumbai wherein the
plaintiff and defendants and their mother was party. The plaintiff has
filed Appeal no. 443 of 2008. The plaintiff has also taken out Marji
application no. 731/2013. In the said suit plaintiffs and defendants
have lost their rights pertaining to property described in schedule –I and
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the plaintiff is well within the knowledge of the same. Thus, the
plaintiff is not entitled for specific performance of MOU. It is further
contended that, the defendant no.1 has filed Criminal complaint being
472/SW/2012 against the plaintiff wherein statement of the plaintiff
came to be recorded. It is further contended that after death of
Ramprakash Roopchand Khanna, father of plaintiff on 09/12/2001 the
plaintiff filed Testamentary Petition no.250/2002. The defendant no.1
had also copy of said proceedings.
6. It is further contended that, the plaintiff has claimed to be
adopted son of said Kishandchand Khanna. He had filed petition under
section 217 of the Indian Succession Act for obtaining letter of
administration to the assets of deceased Khanna. The defendant no.1
has also obtained certified copy of the said proceeding. The plaintiff
has impersonating as Ramprakash Khanna and recover rent form
Malhotra Silk mills. The defendant no.1 had received letter dated
04/03/2017 about the same. There was other litigation of which the
defendant no.1 had got knowledge during pendency of the suit. Now,
the defendant no.1 wants to brought all these facts on record. Hence
the chamber summons.
7. The plaintiff strongly opposed the chamber summon by
filing reply on affidavit. It is contended that the chamber summons is
taken out at belated stage after commencing of trial and as such for
want of due diligence it is not maintainable. It is further contended that
the Hon’ble High Court granted permission for taking out notice of
motion for amendment of the written statement and not the chamber
summons and as such chamber summons is not maintainable.
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8. It is further contended that defendants are in knowledge of
all the facts prior to cross examining PW1. Now the chamber summons
is taken out so as as to fill up the lacuna in the cross examination of
PW1. The written statement is filed by the defendant no.1 and 2.
However, chamber summons is taken out by defendant no.1 only.
Hence, it is not maintainable. The defendant failed to exercise due care
and caution. Therefore, for want of delay and latches on the part of
defendant no.1 the chamber summons may kindly be dismissed with
costs.
9. Heard the learned advocate for the plaintiff and defendants
at length. Perused the record.
10. The learned advocate for defendant no.1 relied on the
authority reported in the case of Life Insurance Corporation of India Vs
Sanjeev Builders Pvt. Limited and Another 2022 SCC online SC 1128;
The Hon’ble Supreme Court while dealing with the scope of
amendment, at para no. 70 gave final conclusion which is summed up
as follows.:
“(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 for 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 hype technical approach and is ordinarily required to be
liberal especially where the opposite party can be compensated by
costs.
(vi) Whether 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,
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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
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.”
11. Following points arise for my determination, to which I
have given my findings with reasons as follows:
Sr.
No.
Points Determination.
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1. Whether the defendant no.1 has made out
case for allowing amendment? Yes
2. What order? As per final
order
REASONS
As to point no.1:
12. Herein it is to be noted that the defendant no.1 by way of
present chamber summons want to brought on record subsequent
events had happened during pendency of suit. The plaintiff strongly
opposed the notice of motion on account of delay and laches. It is
contended that prior to cross examination of PW1 defendant no.1 is
well aware about the said facts. However, the present chamber
summons is taken out to fill up the lacuna. Therefore, at belated stage
chamber summons cannot be allowed.
13. It is to be seen that the plaintiff did not dispute about the
execution of consent term in TE suit no. 11/2016 on 01/07/2016. The
plaintiff has also not disputed about the order passed in RAE suit no.
487/898 of 2000 and the facts that he has filed appeal no. 443 of 2008
and Marji application no. 731/2013. It is not disputed that in the said
suit the plaintiff and defendants lost the property described in
schedule–I to MOU dated 23/06/2004.
14. The plaintiff filed the suit against defendants for the relief
as stated supra. The plaintiff is the cousin of defendants no.1 and 2 who
are real brothers. According to the plaintiff the mother of the defendant
no.1 and 2 had execute MOU dated 23/04/2004 wherein it was agreed
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that the party of the first part i.e., mother of defendants and the
defendant no.1. will release/ transfer/ assigned their right, title and
interest inherited to late Mr. Nandkumar R. K. (father of the
defendants) in the properties more specifically mentioned in schedule-I
to 4 of MOU in favour of the plaintiff for total consideration of Rs.25
lacs. As the defendant no.1 and his mother failed to comply with their
obligations under the MOU, hence the plaintiff has filed suit against
them.
15. It is contended that, during pendency of suit and in view of
the order passed in RAE suit no. 487 /898 of 2000 the property at
schedule-I of MOU lost by the plaintiff and defendants. In view of
Consent decree passed in TE suit no. 11/2016, dated 01/07/201, the
plaintiff and defendants have surrendered all their rights in property at
schedule II of MOU. Thus, in my view, it is necessary to bring all these
subsequent facts on record. If the said amendment is allowed then no
prejudice would be caused to the plaintiff, as the plaintiff himself
admitted about the said facts.
16. So far as the contention of the plaintiff that the written
statement is filed by the defendants no. 1 and 2 and the present
chamber summons is taken out by defendant no.1 or the Hon’ble High
Court has permitted to file written statement and not chamber
summons, I do not find any force in the contention of the plaintiff in
that regard. As per City Civil Court Acts and Rules for carryout
amendment the parties required to file the chamber summons and not
the notice of motion. Thus, in view of my above discussion amendment
as sought are necessary for determining the real question in controversy.
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It is also required for effective and proper adjudication of matter in
between the parties. Thus, defendant no.1 made out case for allowing
chamber summons. Hence my answer to point no. 1 is in the
affirmative.
As to point no.2.
17. In view of my above discussion, I pass the following order:
ORDER
Chamber summons no. 378 of 2020 stands allowed and
made absolute in terms of prayer clause (a) subject to payment of cost
of Rs.5000/-paid to the plaintiff.
Needless to say, the payment of cost is a condition
precedent, failing which order stands automatically vacated.
The defendant no.1 to carry out amendment within 14 days
from the date of order as per schedule annexed therewith.
The defendant no.1 to file copy of amended written
statement on record and supply it to the plaintiff.
Chamber summons stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date: 07.11.2023 (C.R. No.1)
Dictated on : 07.11.2023
Transcribed on : 23.11.2023
Signed on : 23.11.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 24.11.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of
JUDGEMENT/ORDER
07.11.2023
JUDGMENT/ORDER signed by
P.O. on
23.11.2023
JUDGEMENT/ORDER uploaded
on
24.11.2023
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