Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010028042018
Presented on : 23-02-2018
Registered on : 23-02-2018
Decided on : 08-03-2021
Duration : 3 years, 0 months, 13 days
IN THE COURT OF
COURT 1 CITY CIVIL JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
CHAMBER SUMMONS/100392/2018
IN
SC SUIT NO.1114 OF 2017
1. Shaikh Abdul Kased and anr ..Plaintiffs
Versus
1. Kalpesh Babulal Jain and ors ..Defendants
Advocate for plaintiffs: Mr.Bhandari
Advocate for defendants: Mr.Dharam Sharma for defendant nos.1
and 2/Mr.Mungale for defendant nos.3 to 6
ORAL ORDER DELIVERED ON 08/03/2021
1. This chamber summons is filed by plaintiffs seeking the
prayer to amend the plaint as per the schedule attached with
this chamber summons.
2. Heard.
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3. Ld. Counsel for the plaintiffs submitted that plaintiffs have
filed the suit for declaration, injunction and other reliefs
against the defendants. The plaintiffs under registered deed
of conveyance dated 18/05/2015 purchased the entire
property from one Zehrabai. The contention of the plaintiffs
is that by declarations dated 11/02/1988 and 13/09/1999,
Khatijabai Gulam Abbas Parekh, Manubai Fidahussein and
Lailabai Kikabhai relinquished their undivided shares in the
suit property in favour of Zehrabai. The documents were not
traceable at the time of transaction by Zehrabai with the
plaintiffs. Now Zehrabai with the help of plaintiffs was able
to trace the declarations executed by all legal heirs in favour
of Zehrabai and therefore the facts regarding the same are
required to be brought on record.
4. The chamber summons is opposed by the defendants on the
count that chamber summons is taken out by the plaintiffs
with malafide intention of grabbing the suit property. By this
chamber summons, the plaintiffs intend to change the basic
structure of the suit which cannot be permitted. The case of
the plaintiffs is that Zehrabai is the sole legal heir and
representative of Lailabai Hatim Gulamabbas Khambati,
Khatijabai Gulam Abbas Parekh and Manubai Fidahussein.
Upon their death all the right, title and interest in respect of
the suit property devolves on her only. Now the case put up
by the plaintiffs is that the other heirs by declaration
relinquished their right in the suit property, is nothing but
after thought story. The chamber summons be dismissed
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with costs.
5. Ld. Counsel for the plaintiffs placed reliance upon the
following judgments of Hon’ble Apex Court:-
(1)2009 AIR(SC)(Supp.)2671(Surender Kumar Sharma Vs
Makhan Singh)
(2)2001 AIR(SC)699(Ragu Thilak D.John V/s S.Rayappan)
6. There is no quarrel about the law laid down in the above
cited judgments that the discretion is with the Court even if
amendment is sought belatedly, should not adopt hyper
technical approach but has to take liberal approach.
7. Ld. Counsel for defendant nos.3 to 6 argued that the
amendment is malafide which is apparent from the fact that
the story put up by the plaintiffs that their vendor was sole,
surviving heir of the erstwhile owners of the suit property
and by introducing this bogus documents, she wish to claim
that the other legal heirs relinquished their right. This
amendment is malafide. He placed reliance on the judgment
of Hon’ble Apex Court in the case of Revajeetu Builders and
Developers Versus Narayanswamy and sons and others,
(2009) 10 Supreme Court Cases 84 wherein it is held by the
Hon’ble Apex Court that.”
On critically analysing both the
English and Indian cases, some basic princples emerge which
ought to be taken into consideration while allowing or
rejecting the application for amendment:
(1)whether the amendment sought is imperative for proper
and effective adjudication of the case;
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(2)whether the application for amendment is boina fide or
mala fide;
(3)the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms
of money;
(4)refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(5)whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case;
and
(6)as a general rule, the court should decline amendments if
a fresh suit on the amended claims would be barred by
limitation on the date of application.
8. Herein the Hon’ble Apex Court has laid down the criteria for
dealing with the application for amendment. The plaintiffs
nowhere disputed that they purchased the suit property from
one Zehrabai. In the plaint, it is the stand of the plaintiffs
that Zehrabai represented that she is the only legal heir and
representative of erstwhile owners. By this amendment, the
plaintiffs wish to introduce the fact that Zehrabai informed
that other legal heirs relinquished their rights in the suit
property. No doubt this stand of the plaintiffs is contrary to
the stand in the plaint but merely the stand of the plaintiffs
in the proposed amendment is contrary with the stand in the
plaint cannot be termed as malafide. The suit proceed on the
same footing of declaring the conveyance between the
defendants inter se as illegal, bad, null and void. To reach to
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the said conclusion, if the story put by the plaintiffs for
acquisition of the right and title upon the vendor is contrary,
the plaintiffs may face the consequences of the same in the
trial but it cannot be the ground for denying the right of the
plaintiffs to amend the plaint. It is also settled position that
the Court should not go into the merits of the amendment
unless those are pointed to be malafide and changing basic
nature of the suit. The introduction of certain facts would
not mean to change the basic nature of the suit. The suit
stand as it is for declaration of the conveyance between
defendants as null and void and declaring that defendant
nos.3 to 6 without any right and title and interest in the suit
property executed conveyance in favour of defendant nos.1
and 2. In the case in hand, trial has not yet commenced and
therefore bar under proviso to Order 6 Rule 17 of the Civil
Procedure Code would not be applicable. Fundamentally all
the issues arising in respect of same subject matter should be
decided in a single compass of the suit. No prejudice would
be caused to the defendants if the plaintiffs are permitted to
amend the plaint. The defendants will have an opportunity
to rebut the contention of plaintiffs by filing additional
written statement. In view of the above description the
plaintiffs have made out the case for exhausint judicial
discretion. Hence, it is expedient to pass following order:-
ORDER
1. Ch/sum No.392/18 is made absolute in terms of prayer
clause (a) and (b).
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2. Plaintiffs to carry out necessary amendment as per schedule
within a period of two weeks from today.
3. After amendment of the plaint, plaintiffs to supply the copy
of amended plaint to the defendants and also to tender one
copy on record.
(M.SALMAN AZMI)
Judge,
Date: 08.03.2021 City Civil Court, Gr.Bombay
Dictated on : 08/03/2021
Transcribed on : 11/03/2021
Signed on : 15/03/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/03/2021 at 4.00 pm.
Mrs.T.C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
8/3/21
Judgment and order signed by P.O. 15/3/21
Judgment/order uploaded on 18/03/2021
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