Final Order 1

Order Details: Chamber summons
Pdf Text: CS No. 497/18 in Suit No.570305
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.497 OF 2018
IN
SUIT NO. 5703 OF 2005
(HIGH COURT SUIT NO.49 OF 2005)
Usha Ajit Zaveri …. Applicant
IN THE MATTER OF:
Usha Ajit Zaveri …. Plaintiff
Versus
Prasanna Mohanlal Shah & Others ….Defendant
Appearance:
Smt. Sonal, Advocate for plaintiff.
Smt. Vinita Kakar, Advocate for defendant No.2 and 3.
Shri. Prathmesh Seth, Advocate for defendant No.5.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 22/08/2019
ORAL ORDER
1) The Chamber Summons is filed by plaintiff to amend
the plaint and incorporate the paras shown in Schedule. The
Chamber Summons is supported by affidavit of Devang Ajit
Zaveri who on oath stated that the defendant No.5 filed writ
petition no.910/2007 challenging the order dated 14/11/2006
passed by the Divisional Joint Registrar, Cooperative Societies,
Mumbai. The defendant no.5 withdrew the writ petition on
27/02/2008. The plaintiff came to know the deed of
confirmation dated 17/04/2008 after it was registered.
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2) The plaintiff filed writ petition No.659/11. It was
dismissed on 04/07/2011 by holding that defendant No.4 would
have to abide by the outcome of the present suit.
3) The defendant No.5 filed R.A.E. & R suit
No.683/1034 of 2009 before Small Causes Court at Bombay
against plaintiff for eviction claiming that he is the owner of the
suit premises. The plaintiff filed written statement and additional
written statement in the eviction suit. The said suit was stayed by
order dated 08/05/2014. The defendant No.5 filed writ petition
no.2893/15 which is still pending.
4) During the conference with counsel of the plaintiff it
was advised to amend the plaint to incorporate the subsequent
events in the plaint and seek relief of declaration in respect of the
registered confirmation deed executed by defendant No.1 to 3
with defendant No.5. Hence, prayed to allow the Chamber
Summons.
5) The defendant Nos. 2 and 3 filed reply through
affidavit of Jitendra Mohanlal Shah, the defendant No.3. The
defendants have denied the allegations made in the Chamber
Summons to amend the plaint and to add subsequent events. The
plaintiff had knowledge of the Deed of confirmation in the year
2008. Therefore, the proposed amendment which the plaintiff
desires to add in the plaint is beyond the period of limitation. The
nature of suit will change in case the amendment is allowed. The
plaintiff carried out earlier amendment on 22/04/2008 to add
subsequent events. The plaintiff did not seek to amend the plaint
knowingly at that time to add prayer with regard to the
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registered deed of confirmation of sale and transfer dated
06/07/2005 though had full knowledge. The amendment is not
necessary to adjudicate the cause of action for which the suit is
filed. Hence, prayed to reject the Chamber Summons.
6) The defendant No.5 filed reply through affidavit of
Rajendrakumar Upadhyay. He has denied the contents of
Chamber Summons. The defendant No.5 stated that he filed
written statement in the year 2009. The plaintiff had knowledge
about the execution of document then too failed to carry out the
amendment and is now seeking the amendment after lapse of 10
years. Hence, prayed to reject the Chamber Summons.
7) Heard Advocate Smt. Sonal for plaintiff, Advocate
Smt. Vinita Kakar for defendant No.2 and 3 and Advocate Shri.
Prathmesh Seth for defendant No.5. The defendant No.5 has filed
written arguments. I have gone through the contents of written
arguments.
8) Advocate Smt. Sonal for plaintiff argued about the
necessity to add the subsequent events and prayer to cancel the
confirmation deed executed in the year 2008. The said
amendment is necessary on the ground that it will affect the
proceeding as the plaintiff has filed the suit for specific
performance of the agreement. She has also drawn my attention
to the order passed by Hon'ble High Court in writ petition No.
659/11 dated 04/07/2011 filed by plaintiff against defendants
challenging the order dated 21/05/2009 of Dy. Registrar C.S. A
Ward Mumbai, that the society has admitted and enrolled one
R.K. Upadhyay as a member. The Hon'ble High Court in para
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no.3 held that,
“that it is right that the society is not concerned with the
disputes between the parties relating to right, title and
interest in respect of immovable property. The society has
to recognize somebody so as to collect maintenance and
other dues and to ensure that the same is paid regularly.
The society can never adjudicate inter se rights and
remedies of the parties in that behalf lie elsewhere. Once it
is admitted case that the suit is filed and it is pending, the
society will have to abide by the outcome of the same and
depending upon legal rights of the parties to the said suit,
give effect to the declaration, judgment and decree
rendered therein. In these circumstances, this is not a fit
case for intereference as none of the observations in the
impugned order can influence the decision in the civil suit,
which is substantive and the only remedy of the
petitioner.”
9) Advocate Smt. Sonal for plaintiff has stated during
the argument that the writ petition No.2893/15 filed by
defendant No.5 against the stay of the suit by Small Cause Court
is decided and remanded the application u/s.10 of Code of Civil
Procedure for fresh hearing on limited issues.
10) Advocate Smt. Sonal for plaintiff argued that the
earlier amendment was carried out on 22/04/2008 and
thereafter the plaintiff came to know about the registration of the
confirmation deed. The plaintiff has filed lis pendency and it is
registered.
11) Advocate Smt. Sonal for plaintiff has relied on the
authorities reported in, 'Revajeetu Builders And Developers Vs.
Narayanaswamy And Sons And Ors. (2009) 10 SCC 84', in para
no.63, the Hon'ble Apex court of the authority has stated some
basic principles to be considered while allowing or rejecting the
amendment application as,
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1. “that whether the amendment sought is imperative
for proper and effective adjudication of the case;
2. Whether the application for amendment is bona fide
or mala filde ;
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.
12) Advocate Smt. Vinita Kakar for defendant argued
that the suit is filed by plaintiff on oral agreement. The
consideration is not paid by the plaintiff. The suit is filed on
22/12/2004 . The plaintiff has earlier carried out amendment but
failed to add the present proposed amendment.
13) Advocate Smt. Vinita Kakar has drawn my attention
to the reliefs prayed by the plaintiff in the Chamber Summons
and the reasons stated in the Chamber Summons whereby the
plaintiff himself has admitted that he came to know about the
confirmation deed in the year 2008 itself. The proposed
amendment will change the nature of the suit. The Article 59 of
Limitation Act provides period of limitation to file the suit to
cancel or set aside an instrument is 3 years when the facts
entitling the plaintiff to have the instrument canceled first known
to him. In case the amendment is allowed there will be undue
advantage to other side and the defendant will loose the right of
limitation. The proposed amendment is not necessary to decide
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the real controversy between the parties. It will cause injustice to
the defendants. Advocate Smt. Kakar has relied on the following
authorities:
1. K. Raheja Constructions Ltd. & Anr. Vs. Alliance
Ministries & Ors., 1995 Supp (3) SCC 17;
“ that the permission for alienation not a condition
precedent for filing suit fir specific performance. The
decree of specific performance will always be subject to
condition to the grant of the permission by the competent
authority. Therefore, the amendment on the grounds set
out, would defeat the valuable right of limitation accruing
to the respondent.”
2. Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda
Patil & Ors, SCR 595; wherein Hon'ble Apex Court
has held that,
“ that it is not feasible nor advisable to encase a
discretionary power within the strait jacket of an
inflexible formula. Secondly, we do not think that the
“quantity of relief,” an expression somewhat difficult of
appreciation or application in all circumstances, was in
any way affected by the amendments allowed to be made
in this case. What happened in the present case was that
there was a defect in the plaint which stood in the way of
the plaintiff asking for the reliefs he asked for; that defect
was removed by the amendments. The quality whether the
reliefs should be granted or not is a different matter as to
which we are not called upon to express any opinion at
this stage.”
3. Vishwambhar & Ors Vs. Laxminarayan through Lrs &
Ors., (2001) 6 SCC 163;
“ that as noted earlier, the basis of the suit as it stood
before the amendment of the plaint was that the sale
transactions made by Laxmibai as guardian of the minors
were ab initio void and, therefore, liable to be ignored. By
introducing the prayer for setting aside the sale deeds the
basis of the suit was changed to one seeking setting aside
the alienations of the property by the guardian. In such
circumstances, the suit for setting aside the transfers could
be taken to have been filed on the date the amendment of
the plaint was allowed and not earlier than that.”
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4. Sampath Kumar Vs. Ayyakannu & Anr., (2002) SCC
559;
“ that the plaintiff is not debarred from instituting a new
suit seeking relief of declaration of title and recovery of
possession on the same basic facts as are pleaded in the
plaint seeking relief of issuance of permanent prohibitory
injunction and which is pending. In order to avoid
multiplicity of suits it would be a sound exercise of
discretion to permit the relief of declaration of title and
recovery of possession being sought for in the pending suit.
The plaintiff has alleged the cause of action for the reliefs
now sought to be added as having arisen to him during
the pendency of the suit. The merits of the averments
sought to be incorporated by way of amendment are not to
be judged at the stage of allowing prayer for amendment.
However, the defendant is right in submitting that if he
has already perfected his title by way of adverse possession
then the right so accrued should not be allowed to be
defeated by permitting an amendment and seeking a new
relief which would relate back to the date of the suit and
thereby depriving the defendant of the advantage accrued
to him by lapse of time, by excluding a period of about 11
years in calculating the period prescriptive title claimed
to have been earned by the defendant. The interest of the
defendant can be protected by directing that so far as the
reliefs of declaration of title and recovery of possession,
now sought for, are concerned the prayer in that regard
shall be deemed to have been made on the date on which
the application for amendment has been filed.”
5. Bharat Karsondas Thakkar Vs. Kiran Construction
Co. & Ors, (2008) 13 SCC 658;
“ that the scope of suit for specific performance could not
be enlarged to convert the same into a suit for title and
possession. The proper course of action is to file separate
suit by challenging the concerned decree. The facts stated
in the case is different from the present facts of the case is
in respect of the oral agreement between the parties to sale
of the suit property of the defendants.”
14) Advocate Shri. Prathmesh Seth for defendant No.5
has also drawn my attention to Article 59 of Limitation Act that
the relief claimed in the proposed amendment is beyond the
period of limitation. Therefore in case the amendment is allowed
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it will cause injustice to the defendants. Hence prayed to reject
the Chamber Summons.
15) The plaintiff has filed the suit for specific
performance of the agreement between her and defendants No. 1
to 3. Plintiff in para 4 of the plaint stated that the suit is filed for
declaration that oral agreement entered into between plaintiff
and defendant No.3 representing defendant No. 1 to 3 for sale of
flat no.23 for total consideration of Rs.42,00,000/ is valid,
subsisting and binding on the parties.
16) The plaintiff in the Schedule to the Chamber
Summons has stated the proposed amendment to be carried out
and has prayed to add the following prayers to the plaint:
(b)(i) “that this Hon'ble Court be pleased to declare that the
Deed of Confirmation of Sale and Transfer dated 6th July
2005 executed between No.5 and the Trustees of Moholal
Maganlal Trust are null and void and not binding upon
the plaintiff.
(b)(ii) that this Hon'ble Court be pleased to pass a decree and
order directing Defendant No.5 and/or Defendant Nos. 1
to 3 or such of them as it deems fit to deliver up the
Memorandum of Understanding dated 10th February
2004 executed between Defendant No.5 and the Trustees
of Moholal Maganlal Trust, Deed of Confirmation of Sale
and Transfer dated 6th July 2005 executed between
Defendant No.5 and the Trustees of Moholal Maganlal
Trust and Deed of Confirmation dated 17th April 2008
executed between defendant No.5 and the Trustees of
Moholol Maganlal Trust for cancellation of the same.”
17) The proposed amendment is in respect of the
registration of the confirmation deed dated 17/4/2008 and the
subsequent events in respect of registration and the eviction suit
filed by defendant No.5 against the plaintiff.
18) The plaintiff has carried out earlier amendment in
the plaint on 22/4/2008 as per court's order dated 26/3/2008.
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Advocate Smt. Sonal for plaintiff during the argument has stated
that they have filed lis pendency which is registered after the suit
was filed. The plaintiff in the Chamber Summons has stated that
he came to know about the registration of confirmation deed in
the year 2008. Admittedly the plaintiff did not filed the
application immediately after he came to know about the
confirmation deed and waited for 10 years to file the present
Chamber Summons to amend the plaint and incorporate the
proposed amendment stated in the Schedule. The defendants
have strongly objected for amendment on the ground that it is
beyond the period of limitation. Therefore, in case the
amendment is allowed they will be deprived of the ground of
limitation.
19) The present suit is filed by the plaintiff for specific
performance of oral agreement between the parties. The earlier
amendment is carried out by the plaintiff and the defendant No.5
was impleaded who has purchased the property from the
defendants No.1 to 3. The said amendment was to incorporate
pleading in respect of memorandum of Understanding arrived
between the defendant No.5 and defendants No.1 to 3 for sale of
the suit premises. The said Memorandum of Understanding is
completed by execution of registered confirmation deed by the
parties in the year 2008.
20) Therefore, the proposed amendment will not change
the nature of the suit. I have gone through the authorities relied
by both the parties. The basic principle to allow the amendment
according to the facts and the nature of relief claimed. The
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present facts the suit property is same which is sold by defendant
No.1 to 3 to defendant No.4 and 5. Therefore, the registered
confirmation deed of sale is required to be challenged only on the
point of limitation to seek the amendment and it share will not be
a criteria to deny the proposed amendment.
21) The proposed amendment is necessary to decide real
controversy between the parties. However, there is delay of 10
years to carryout the said amendment which will cause serious
prejudice to the defendants in case it is allowed from its cause of
action i.e. the knowledge of the plaintiff in the year 2008. The
defendant will loose the opportunity to plead and take a ground
of limitation. Hence, the amendment will have to be allowed
from the date of the application i.e. 27/4/2018. No prejudice will
cause to the defendant in case amendment is allowed. The
defendants can be compensated with cost. Hence,pass following
order:
ORDER
1. The Chamber Summons is allowed
on payment of cost of Rs.10,000/
(Rupees Ten Thousand only) to
defendants No.2,3 and 5 to be paid
within one month failing which the
Chamber Summons shall stand
rejected.
2. On payment of above cost within
above period the prayer clause a
and b of the Chamber Summons is
made absolute.
3. The proposed amendment will have
effect from the date of application
i.e. 27/4/2018.
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4. Accordingly Chamber Summons is
disposed of.
(S.S. Nagur)
Date : 22/08/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Advocate Smt. Vinita Kakar for defendant No.2 and 3 and Shri.
Prathmesh Seth for defendant No.5 prayed for stay of the order
on the ground that they want to challenge it. The operation of
the order is stayed for six weeks.
(S.S. Nagur)
Date : 22/08/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 22/08/2019
Transcribed on : 30/08/2019
Signed on : 30/08/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
31/08/2019 & 5.17 p.m. : Mrs. Shobha Ashok Shekade
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 22/08/2019
Order
Judgment/Order signed by the P.O. on : 30/08/2019
Judgment/Order uploaded on : 31/08/2019
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