Order 1

Order Details: Chamber summons
Pdf Text: Order ..1.. Ch/S No. 742 of 2019
MHCC010037822019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.742/2019
IN
S.C. SUIT NO. 4638/2009
(H.C. SUIT NO. 3061/2009)
Satish Ramanna Shetty. .. Plaintiff.
Versus
Sita Ramanna Shetty and three others. .. Defendants.
Advocates
Pramod Bhosale for the plaintiff.
Hardik Desai for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 16th September, 2021.
ORAL ORDER
Heard advocate for both parties on chamber summons moved on
behalf of the plaintiff for amendment of the plaint contending that the
approximate market value of the suit properties at the time of filing of
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the suit was Rs.4 Crores, he is ready to pay additional court fees and
hence suit be transferred to the Hon'ble High Court.
2. Defendants filed their reply and opposed the chamber summons
contending that plainitiff is claiming 1/5th share in the suit properties.
Hence even if, share of the plaintiff is taken into consideration, it will be
below Rs.1 Crores. Hence this Court has jurisdiction to try the suit.
3. Advocate for the plaintfff drawn attention of the Court towards
paragraph no.1 of the written statement (Exhibit4) wherein defendants
submitted that this Court has no jurisdiction to try and entertain the suit
as value of subject matter of the suit and claim of the plaintiff to be
adjudicated is more than Rs.1 Crores. Hence he prayed for allowing the
chamber summons.
4. Contention of advocate for defendants is that suit is transferred
to this Court in the year 2015. Plaintiff could have applied for
transferring the same to the Hon'ble High Court immediately. Plaintiff
has not given any cogent reasons for not taking the steps earlier.
Chamber Summons is barred by Article 137 of the Limitation Act. Trial
has commenced. He prayed for dismissal of chamber summons by
placing reliance on following citations :
i) Polyflor Limited v/s. Sh. A.N. Goenka & Ors. (Delhi High Court,
Date of Decision 18/04/2016),
ii) Bhimsingh Ganpatsingh Rajput v/s. Pralhadsingh Gulabsingh
Rajput (2015 SCC OnLine Bom 1900),
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iii) R.N. Goslin v/s. Yashpal Dhir [(1992) 4 SCC 683],
iv) Mohd. Latif through LR's v/s. Gaffuri and Ors., (Himachal Pradesh
High Court, Date of Decision16/04/2018) and
v) Harinarayan G. Bajaj v/s. Vijay Agarwal [2012 (2) Mh.L. J.106].
5. Order 6, Rule17 of the Civil Procedure Code (CPC) deals with
amendment of pleadings which includes the plaint and written
statement. As per Order 6, Rule17 of the CPC, the Court may at any
stage of proceedings allow either party to alter or amend his pleadings
in such a manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the matter before
the commencement of trial. Thus for amendment of pleadings, party
has firstly to satisfy the Court that said proposed amendment is
necessary for the purpose of determining the real questions in
controversy between the parties and secondly he has to show that in
spite of due diligence, he could not have raised the matter before the
commencement of trial.
6. In view of above legal provision, it is to be seen from the record
whether present chamber summons is liable to be allowed or not.
Perused the record. Suit is filed in the year 2009 before the Hon'ble
High Court for administration of the estate of the deceased, Ramanna
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Shetty and for partition of his immovable properties. Thus the suit is
basically for partition. Plaintiff originally valued the suit at Rs.51,000/
for the purpose of jurisdiction and paid court fees of Rs.5,080/.
7. In the year 2012, suit is transferred to this Court on the ground of
enhancement of pecuniary jurisdiction. On 17.12.2014, plaintiff's Notice
of Motion No. 356 of 2010 was dismissed for want of prosecution and
the case was fixed for evidence of the plaintiff. Then defendants taken
out Notice of Motion No. 675/2015 for taking their written statement
on the record, it was allowed on 27.04.2015. Matter was fixed for
issues. On 18.03.2017, issues are framed at Exhibit5. Case was fixed
for evidence of the plaintiff and suit was dismissed in default on
21.11.2017. Then the plaintiff taken out Notice of Motion
No.4564/2017 for restoration of the suit and it was allowed on
19.10.2018 subject to cost of Rs.5,000/. Then the plaintiff filed his
affidavit of evidence alongwith documents on 28.11.2018. On
21.12.2018, documents of plaintiff are marked as exhibits and the case
was fixed for cross examination of plaintiff since 15.01.2019.
Thereafter, on 02.04.2019, plaintiff moved present chamber summons
for amendment.
8. From the perusal of affidavit in support of the chamber summons,
it is evident that plaintiff only prayed for condonation of delay, if any,
in taking out present chamber summons. No reason is mentioned in the
affidavit in support of the chamber summons why plaintiff taken out
present chamber summons belatedly.
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9. Admittedly, trial is commenced, documents of plaintiff are
exhibited and case was fixed for cross examination of the plaintiff. In
para no.4 of affidavit in support of the chamber summons, plaintiff
mentioned that approximate market value of the properties of the
deceased at the time of filing of the suit was Rs.4 Crores, but the
plaintiff valued the properties at Rs.51,000/. This shows that the
plaintiff was aware about true valuation of the suit properties.
Defendants denied valuation of the suit properties as drawn by the
plaintiff for the purpose of jurisdiction and court fees.
10. Defendants in their written statement (Exh.4) already raised
point of jurisdiction of this Court to try and entertain the suit. This
show that plaintiff was aware about the objections taken by defendants
as to jurisdiction of the Court. So also, considering pleadings of the
parties, issues are framed at Exhibit 5 on 18.03.2017. Issues no.5 reads
as under
“Whether this Court has jurisdiction to try and entertain present
suit?”
11. Valuation of subject matter of the suit for the purpose of
pecuniary jurisdiction is to be seen at the time of filing of the suit.
Plaintiff himself valued the suit at Rs. 51,000/ for the purpose of
jurisdiction and Court fees. Accordingly, plaintiff paid Court fees of Rs.
5,080/. Hence plaintiff cannot say that valuation of the suit properties
was Rs. 4 Crores at the time of filing of the suit especially when the
issue as to the jurisdiction of the Court is already framed. Now there is
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no reason for the plaintiff to file present chamber summons for
amendment.
12. Further proposed amendment is not necessary for the purpose of
determining the real questions in controversy between the parties.
Plaintiff failed to show that in spite of due diligence, he could not have
raised the matter before the commencement of trial. Conduct of the
plaintiff himself shows that he is not vigilent in prosecuting the suit and
adopting the delaying tactics. In view of above facts and circumstances,
present draft chamber summons is liable to be dismissed with costs.
13. Citation at Sr.No.(i) and (iv) relied on by advocate for defendants
is pertaininig to production of documents after commencement of the
trial. It has no relevance for deciding the present chamber summons.
Citation at Sr.No.(iii) relied on by advocate for defendants is relating to
doctrine of election and estoppel. It has relevance with the facts of the
case as the plaintiff valued the suit at Rs.51,000/ and now he is
claiming that valuation of the suit property was Rs.4 Crores at the time
of filing of the suit.
14. However, advocate for defendants misleaded the Court by
placing reliance on citation at sr. no.(v) Harinarayan G. Bajaj v/s. Vijay
Agarwal [2012 (2) Mh.L. J.106] to say that Article 137 of the Limitation
Act is applicable for amendment of pleadings. This Court gone through
the said citation/Judgment which is delivered by the Learned Single
Judge of the Hon'ble Bombay High Court on 07.12.2011. Said
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Judgment is set aside by the Division Bench of the Hon'ble Judges of the
Hon'ble Bombay High Court on 27.02.2013 in appeal (Mr.Vijay Agarwal
v/s. Harinarayan G. Bajaj). The core question which falls for
consideration in appeal was whether an application for amendment
under Order 6 Rule 17 of the C.P.C. is subject to the provision of
Artcile 137 of the Limitation Act. It is held that an application for
amendment of pleadings is an interlocutory application and it is not
subject to any period of limitation unless otherwise specifically provided
by law.
15. The Hon'ble Apex Court in Shub Karan Bubana @ Shub Karan
Prasad Bubana v/s. Sita Saran Bubana and Ors. [(2009) 9 SCC 689]
given guiding principle in suit for partition and held that Article 137 of
the Limitation Act is not applicable to an application in a suit which is
already pending, which contains no fresh or new prayer for relief like
an application for drawning a final decree after passing preliminary
decree in a suit for partition.
16. The Hon'ble Apex Court in Padma Sundara Rao and Ors. v/s.
State of Tamilnadu and Ors. [2002(3) SCC 533] held that Court should
not placed reliance on decisions without discussing as to how the
factual situation fits in with the fact situation of the decision on which
reliance is placed. There is always peril in treating the words of a
speech or judgment as though they are words in a legislative enactment,
and it is ot be remembered that judicial utterances are made in the
setting up the facts of a particular case. Circumstantial flexibility, one
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additional or different fact may make a world of diffrence between
conlcusions in two cases.
17. Now a days advocates are adopting the practice of filing bunch of
citations before the Court without going into details of it and
unnecessarily increase the burden of Court. Advocates are also officers
of the Court and hence they are not suppposed to mislead or misguide
the Court. Admittedly advocate for defendants relied on the citation at
sr. no.(v) as above and tried to mislead the Court on the point of law. In
view of above, this Court proceeds to pass following order:
ORDER
1. Chamber Summons No. 742 of 2019 is dismissed with
costs of Rs.3,000/ to be deposited with District Legal Services
Authority.
2. Defendants also directed to deposit costs of Rs.3,000/ with
District Legal Services Authority for misleading the Court by
citing overruled citation.
3. Above costs to be deposited before next date.
4. Chamber Summons No. 742 of 2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 16.09.2021 City Civil Court, Gr. Mumbai.
Typed on : 16.09.2021
HHJ signed on : 16.09.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16.09.2021, 05.30 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Wagh
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
16.09.2021
JUDGMENT/ORDER signed by P.O.
on
16.09.2021
JUDGMENT/ORDER uploaded on 16.09.2021
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