Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO. 662 OF 2018
IN
L.C. SUIT NO. 103 OF 1991
Arun Nagjibhai Mehta and Ors. .. Plaintiffs
Versus
Link Palace Cooperative Housing Society
Limited and Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 19th October, 2018
Ms. S.T. Trivedi , ld. advocate for plaintiff no. 1.
Mr. Vinay Taliwal for defendant no. 1
Mr. Sharma, ld. advocate for plaintiff nos. 2 to 9 and 11.
Ms. Hajare, ld advocate for defendant no.7/BMC.
O R D E R
1. This Chamber summons is taken out by plaintiff to permit
plaintiff to amend plaint and add para A1 as per schedule annexed to
Ch/s. Plaintiff no. 1 has filed his affidavit in support of Ch/s
contending that defendant nos. 2 to 11 have subsequently at very late
stage transposed them as plaintiffs and they are being represented by
another advocate. In para no. 10 of affidavit of evidence of P.W.1 i.e.
plaintiff no. 1 it is stated that defendant no. 1 society issued plaintiff no.
1 two cheques of Rs. 3 lacks and 2 lacks in the name of plaintiff no. 1
and it was also agreed that over and above the agreed consideration
amount agreed to be paid by defendant no. 1 society under agreement
dated 25.04.1989 but defendant no. 1 society also agreed to pay total
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sum of Rs. 18,48,000/ towards development charges and balance
under Deed of Conveyance was Rs. 14,71,000/ and as agreed out of
the said sum, a sum of Rs. 09,71,000/ and Rs. 13,48,000/ were to be
given in the name of advocate for plaintiff no. 1. Accordingly
defendant no. 1 society issued and handed over above referred two
cheques of Rs. 09,71,000 and 13,48,000/. Particulars of all 4 cheques
were also given by plaintiff in affidavit. It is further contended that in
para 11 of affidavit of evidence of plaintiff no. 1 he stated that all
aforesaid 4 cheques when presented for payment were dishonoured and
he has filed xerox copies of all those cheques in compilation of
documents. Original 4 cheques were not traceable despite due and
deligent search by plaintiff no. 1. Now he found that due to oversight,
xerox copies of aforesaid 4 cheques remained to be produced at Sr. No.
12 of compilation of documents. Further subsequently he remembered
that he gave those 4 cheques to his advocate Mr. Pathak for pursuing
the matter in the Metropolitan Magistrate Court at Andheri as they
were dishonoured. Unfortunately advocate Mr. Pathak expired and
plaintiff could not get original cheques. Now he has received two
cheques of Rs. 3 lacks and 2 lacks and xerox copies of other 2 cheques
may be permitted to be produced and he should also be permitted to
amend prayers in the plaint, to add prayer to the effect that in the event
of not declaring agreement dated 25.04.1989 as also conveyance dated
29.06.1990 as null and void as per prayer (a) of the plaint, then in that
event and in alternative this Court be please to order and direct
defendant no. 1 society to pay Rs. 33,19,000/ to plaintiff no. 1 with
interest thereon at the rate of 18% p.a. from the date of filing of the suit
till payment or realisation of such other sum. Further this Court may
order defendant to pay damage and loss suffered by plaintiff no. 1
together with interest thereon at the rate of 18 % per annum till
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realisation.
2. It is contended that after conveyance dated 29.06.1990
defendant no. 1 constructed 40 flats and these flats have been given
and are occupied by members of defendant no. 1 which are worth more
than 60 crores. It is thus fair, reasonable and in interest of justice
plaintiff no. 1 should receive amount of Rs. 33,19,000 as agreed by
defendant no. 1 with interest @ 18% per annum. If the said amount is
paid to plaintiff with interest he will be also in position to pay the
original owners. It is contended that copies of cheques are already
referred in the plaint and affidavit of evidence and not being introduced
by plaintiff for the first time. Hence according to plaintiff no. 1 Ch/s is
necessary to be allowed.
3. Defendant no. 1 has resisted Ch/s by filing affidavit
contending that above suit is filed seeking reliefs more particularly
prayed in the plaint. Said suit was originally filed by plaintiff in the
year 1991 before the Hon'ble High Court. Defendant no. 1 has filed his
written statement on 24.06.1996. Issues have been framed and plaintiff
no. 1 has filed his affidavit of evidence on 02.09.2016 in above suit. As
such trial is commenced. This Ch/s is taken out by plaintiff no. 1 for
making amendment to plaint for addition of additional prayer clause
and Ch/s is taken out by plaintiff no. 1 only to delay the hearing and
disposal of suit and to harass the defendants. Suit was on the stage of
trial. Order 6 Rule 17 of CPC provides for amendment of pleadings. It
provides that no application for amendment shall be allowed after the
trial has commenced, unless the court comes to the conclusion that
inspite of due diligence, party could not have raised the matter before
the commencement of trial. Plaintiffs have not made out sufficient
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cause or have not shown due diligence as to why earlier prayer set for
or amendment could not have been asked in the plaint. It is alleged
that Ch/s has been made in casual manner and plaintiffs are taking the
Court granted for. Plaintiffs have not offered satisfactory explanation
about due diligence for amendment before commencement of trial.
Scope of parties constructive knowledge to the claim is very critical to
the outcome of suit. Ch/s is taken out after 27 years of filing plaint
and if amendment will be allowed grave loss and prejudice will be
caused to defendants and same would cause delay in final hearing of
the suit. Defendant no. 1 has denied the fact that plaintiff is entitled to
receive amount as claimed in Ch/s. It is alleged that plaintiff no. 1 has
not carried out obligation as required to be carried out by him under
agreement. The facts above clearly established that defendant no. 1 is
intending to pay plaintiff no. 1. On the contrary, defendant no. 1 is
liable to be received from plaintiff. It is denied that defendant no. 1 is
liable to pay amount of Rs. 33,19,000 with interest at the rate of 18%
per annum. Hence defendant no. 1 is resisting Ch/s and prayed to
reject it.
4. Defendant nos. 2 to 11 have filed affidavit of Ramkishan J.
Upadhyay and raised same contention that Ch/s is moved after much
delay. It is alleged that defendant nos. 2 to 6 are co owners of suit
property and they are not yet paid consideration despite executing
conveyance deed dated 29.06.1990. Plaintiff no. 1 received certain
consideration and hardly paid petty amount to land owners. Plaintiff
no. 1 is developer and filed present suit contending that defendant no.1
did not pay consideration amount to him. Therefore he could not pay
amount to original owners. It is alleged that plaintiff no. 1 has started
avoiding to prosecute this suit in collusion with defendant no. 1, hence
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plaintiff nos. 2 to 11 transposed themselves as plaintiffs. Interest of
plaintiff nos. 2 to 11 in the suit is common and plaintiff no.1 had not
paid consideration amount even they entirely believed plaintiff no. 1 .
It is alleged that plaintiff no. 1 tried to get suit dismissed at the instance
of defendant no.1 therefore plaintiff nos. 2 to 11 were allowed to be
transposed as plaintiffs. Plaintiff no. 1 after 27 years cannot come with
a case to claim alternative reliefs in monetary terms when original
reliefs claimed as proposed amendment is going to change entire cause
of action and it is going to directly affect plaintiff nos. 2 to 11. Plaintiff
no. 1 will misappropriate amount sought by him and plaintiff nos. 2 to
11 will remain without altogether. Therefore plaintiff nos. 2 to 11 have
prayed to reject the Ch/s.
5. It is alleged that when all for 27 years the amendment was
not sought for, question is raised why after filing evidence and
compilation of documents plaintiff no. 1 has sought amendment. It is
alleged that plaintiff is playing something fishy and is praying to cheat
plaintiff nos. 2 to 11 and defendant nos. 2 to 6. Lastly it is contended
that plaintiff has filed this Ch/s with malafide intention hence prayers
made in Ch/s are illegal. Hence amendment sought is prejudicial to the
interest of plaintiff nos. 2 to 11 and defendant nos. 2 to 6. Therefore
plaintiff nos. 2 to 11 have prayed to dismiss the Ch/s.
6. Advocate for plaintiff no. 1 argued that plaintiff is not
changing nature of the suit. However plaintiff No. 1 is intending to
make amendment to claim damages if the decree of nullity of disputed
agreement and conveyance will not granted. Hence according to
advocate for plaintiff no. 1 the amendment sought is necessary for the
plaintiff to get damages on proving nullity of disputed agreement and
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conveyance. Plaintiff no. 1 adv. Argued that due to oversight
amendment was not sought by plaintiff. However after filing of
affidavit of evidence plaintiff no. 1 found that amendment is necessary
and therefore plaintiff no. 1 has moved Ch/s and it is necessary to be
made absolute. In support of her argument plaintiff’s adv. cited
following case laws.
(a) Hi Sheet Industries Vs. Litelon Limited and Ors. reported
in AIR 2007 Mad 78 in which it is observed that
" In fact, in our considered opinion, there is no
reasonableness on the part of the defendant to
oppose for amendment. Whether there has been
unreasonableness or unfairness is to be determined
by reference to all the circumstances in which the
material rights are created or effected. In order to
establish the defence of unreasonableness or
unfairness, it is necessary to point out the matters
concerning the creation or qualification of the
material contractual obligation which render it not
fair and honest to call for its execution, it is not
needful that there was any intentional unfairness of
dishonesty at that time."
It is further observed that
" Before parting with the decision, we are
tempted to cite a paragraph from a case Ma Shwe
Mya v. Maung Mo Hnaung
All rules of court are nothing but provisions
intended to secure the proper administration of
justice, and it is therefore essential that they should
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be made to serve and be subordinate to that
purpose, so that full powers of amendment must be
enjoyed and should always be liberally exercised,
but nonetheless no power has yet been given to
enable one distinct cause of action to be substituted
for another, nor to change, by means of
amendment, the subject matter of the suit.
Keeping the above principle, the Court of law has
to dispense the justice.
Therefore, we hold that the impugned order,
disallowing the amendment, is liable to be set aside
for more than one reason.
In view of our aforesaid discussion, we are of the
view that the trial Court has erred in rejecting the
application for amendment of the plaint.
Accordingly, the order of the trial Court in I.A. No.
589 of 2002 in O.S. No. 45 of 1996 is set aside and
the application for amendment of plaint is allowed.
The plaintiff is directed to proceed to to the trial
Court forthwith and take immediate steps for the
necessary amendment as mentioned in said
application and carry out the amendment within a
period of one month from the date of this order."
(b) Unreported judgment of Hon'ble Madras High Court in the case
between Rajapunnisa vs. Meharajan Begum and Ors. in C.R.P. (PD) No.
3759 of 2011 and M.P. No. 1 of 2011 in which it is observed that
" In this context, it will be useful to refer to the
decision reported in (J. Samuel and others vs. Gattu
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Mahesh and others) MANU/SC?0028/2012 : 2012
(2) CTS 94 wherein the Hon'ble Supreme Court
dealt with the power of the Court to allow
application for amendment in genuine and
deserving cases. In para 16 of said judgment, it was
held that in deserving cases, the Court can allow
delayed amendment by compensating the other side
by awarding costs. It was further held that the
entire object of the amendment to Order 6 Rule 17
as introduced in 2002, is to stall filing of the
application for amending a pleading subsequent to
the commencement of trial, to avoid surprises and
that the parties had sufficient knowledge of other's
case. It was further held that it also helps checking
the delays in filing the applications. In the light of
the above decision of the Hon'ble Supreme Court, I
am of the view that this is a fittest and deserving
case where the first appellate Court ought to have
allowed the application for amendment in as much
as the plaintiff could not file the application for
amendment before the trial Court in view of the
affidavit of undertaking filed by the second
defendant/ second respondent herein and the
consequential order dated 16.10.2003 passed by the
trial Court modifying the order of injunction
originally granted in favour of the plaintiff with a
condition that the second defendant can put up a
construction upto ground floor level alone and in
the event of plaintiff succeeding in the suit, he
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should not make any claim towards the construction
put up by him. In the result, the Civil Revision
Petition is allowed by setting aside the order dated
10.01.2011 passed in C.M.P. No. 8 of 2009 in A.S.
No. 445 of 2008 on the file of the Additional District
and Sessions Judge, Fast Tract Court No. IV,
Chennai. No costs. Consequently, connected
miscellaneous petition is closed. "
(c) Ram Mohan vs. Anil Kumar reported in MANU /DE/3550/2017
in which it is observed that
" The Specific Relief Act having permitted
amendment of plaint to seek the reliefs as
mentioned above at any stage of the proceeding, the
contention of the counsel for the petitioner that
proviso to Order VI Rule 17 has to apply is clearly
erroneous and misconceived. The Rules contained
in First Schedule of the CPC , as Order VI is, provide
the law relating to procedure of Courts of Civil
Judicature; but where any statute codifying the law
relating to any right which may be claimed in civil
Court provides otherwise, such statute being a
special law, in comparison to general law contained
in CPC, has to prevail or the two have to be
harmoniously construed."
(d) Abdul Rehman and anr. Vs. Mohd. Ruldu and Ors reported in
(2012) 11 Supreme Court Cases 341 in which it is observed that
" We reiterate that all amendments which are
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necessary for the purpose of determining the real
question in controversy between the parties should
be allowed if it does not change the basic nature of
the suit. A change in the nature of relief claimed
shall not be considered as a change in the nature of
suit and the power of amendment should be
exercised in the larger interests of doing full and
complete justice between the parties."
7. Adv. for plaintiff nos. 2 to 11 strongly argued that plaintiff
no. 1 is not entitled to relief of amendment as per amended proviso of
Order 6 Rule 17(2) of CPC. According to defendant’s adv. Plaintiff no.
1 has not given satisfactory explanation for delay caused in taking out
Ch/s. Not only it , it is argued that plaintiff no. 1 has filed this suit in
the year 1991, issues are framed in 2008 and plaintiff has filed affidavit
of examination in chief in 2016. Thereafter when plaintiff’s turn came
for cross examination he has moved this Ch/s for amendment in the
plaint with intention to delay the matter. It is argued that plaintiff is
intending that plaintiff nos. 2 to 11 should be deprived of their rights
and fruits of the decree which may be passed in the suit. It is argued
that plaintiff is intending that all the amounts should be received by
him and plaintiff nos. 2 to 11 and defendant nos. 2 to 6 should not get
any amount. Hence according to adv. for plaintiff nos. 2 to 11 the
amendment sought by plaintiff cannot be allowed.
8. Argument advanced on behalf of defendant no. 1 is that
plaintiff has moved this Ch/s after 27 years of filing of the suit and
plaintiff has not given any explanation as to why he could not seek
amendment in the plaint prior to filing of affidavit of evidence of
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plaintiff. It is alleged that amendment application is filed in very
casual manner and therefore plaintiff is not entitled to relief sought in
Ch/s. In support of his arguments defendant no. 1 has placed reliance
on following case laws.
(1) Shaileshkumar Nathalal Modh Vs. Chaudhary Takahatben
Kesharbhai reported in 2014 SCC Online Guj 12384 in which it is
observed that
“As noted hereinafter, the prayer for amendment
was refused by the High Court on two grounds. So
far as the first ground is concerned, i.e. the prayer
for amendment was a belated one, we are of the
view that even if it was belated, then also, the
question that needs to be decided is to see whether
by allowing the amendment, the real controversy
between the parties may be resolved. It is well
settled that under Order 6 Rule 17 of the Code of
Civil procedure, wide powers and unfettered
discretion have been conferred on the Court to
allow amendment of the pleadings to a party in
such a manner and on such terms as it appears to
the Court just and proper. Even if, such an
application for amendment of the plaint was filed
belatedly, such belated amendment cannot be
refused if it is found that for deciding the real
controversy between the parties, it can be allowed
on payment of costs. Therefore, in our view mere
delay and latches in making the application for
amendment cannot be a ground to refuse
amendment. It is also well settled that even if the
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amendment prayed for is belated, while considering
such belated amendment, the Court must bear in
favour of doing full and complete justice in the case
where the party against whom the amendment is to
be allowed, can be compensated by cost or
otherwise. [ See B.K.N. Pillai v. P. Pillai (AIR 2000
SC 614 at page 616]. Accordingly, we do not find
any reason to hold that only because there was
some delay in filing the application for amendment
of the plaint, such prayer amendment cannot be
allowed.”
(2) Ajendraprasadji N. Pandey and Anr. Vs. Swami
Keshavprakeshdasji N. and Ors reported in (2006) 12 SCC 1 in which it
is observed that
“ By Act 46 of 1999, there was a sweeping
amendment by which rules 17 and 18 were wholly
omitted so that an amendment itself was not
permissible, although sometimes effort was made to
rely on Section 148 for extension of time for any
purpose.
Ultimately, to strike a balance the legislature
applied its mind and reintroduced Rule 17 by Act 22
of 2002 w.e.f. 172002. It had a provision
permitting amendment in the first part which said
that the Court may at any stage permit amendment
as described therein. But it also had a total bar
introduced by a proviso which prevented any
application for amendment to be allowed after the
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trial had commenced unless the court came to the
conclusion that inspite of due diligence the party
could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration.”
3. Vivek Kumar Mishra Vs. Hari Shankar Mishra reported in 2013
SCC Online MP 10371 in which it is observed that
“ Furthermore, it is held in Vidyabai v. Padmalatha
AIR 2009 SC 1433;
“………….. However, proviso appended to Order VI,
Rule 17 of the Code restricts the power of the court.
It puts an embargo on exercise of its jurisdiction. The
Court’s jurisdiction, in a case of this nature is limited.
Thus, unless the jurisdictional fact, as envisaged
therein, is found to be existing, the Court will have no
jurisdiction at all to allow the amendment of the
plaint.”
Recently in In J. Sammuel and others v. Gattu Mahesh
and others: (2012)2SCC 300: it is observed by their
Lordships:
“…………… The court’s discretion to grant
permission for a party to amend his pleading lies on
two conditions, firstly, no injustice must be done to
the other side and secondly, the amendment must
be necessary for the purpose of determining the real
question in controversy between the parties.
However to balance the interests of the parties in
pursuit of doing justice, the proviso has been added
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which clearly states 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.”
4. Chander Kanta Bansal Vs. Rajinder Singh Anand reported in
(2008) 5 Supreme Court Cases 117 in which it is observed that
“ the entire object of amendment to Order 6 Rule 17
as introduced in 2002, is to stall filing of application
for amending a pleading subsequent to the
commencement of trial, to avoid surprises and that
the parties had sufficient knowledge of the other’s
case. It also helps in checking the delays in filing
the applications. Once the trial commences on the
known pleas, it will be very difficult for any side to
reconcile. Inspite of the same, a exception is made
in the newly interested proviso where it is shown
that in spite of due diligence, the party could not
raise a plea, it is for the court to consider the same.”
The proviso limits the power to allow amendment
after the commencement of trial but grants
discretion to the court to allow amendment if it
feels that the party could not have raised the matter
before the commencement of trial inspite of due
diligence. It is true that the power to allow
amendment should be liberally exercised. The
liberal principles which guide the exercise of
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discretion in allowing the amendment are that
multiplicity of proceedings should be avoided, that
amendments which do not totally alter the
character of an action should be granted, while care
should be taken to see that injustice and prejudice
of an irremediable character are not inflicted upon
the opposite party under pretend of amendment.”
9. On perusal of record it is noticed that my learned
predecessor has framed issues in this suit on 10.06.2015 and plaintiff
has filed his affidavit in examination in chief on 31.08.2017. Thereafter
plaintiff has sought adjournment and lastly moved this Ch/s on
03.04.2018. Thus it seems that plaintiff is trying to delay the suit which
is pending for more than 27 years. As issues are framed and affidavit of
evidence is filed by plaintiff in view of amended proviso of Order 6 Rule
17(2) of CPC, plaintiff cannot be permitted to amend the plaint. Not
only it, plaintiff in a very casual manner has contended in his affidavit
filed in support of Ch/s that after filing of affidavit of evidence original
4 cheques were not traceable and he produced Xerox copies of aforesaid
cheques. However now he found out that due to oversight Xerox
copies of 4 cheques remained to be filed and he has subsequently
remembered that he has given those cheques to his advocate. Thus
plaintiff even has not taken care to produce documents before the Court
carefully and now he is intending to amend the plaint for seeking
amendment on the basis of the cheques which were not filed by him.
Further merely by saying that inadvertently he could not file cheques
and now he has found those cheques he cannot be permitted to amend
the plaint because this suit is pending for 27 years and from record it
becomes clear that once the suit was dismissed for default and matter is
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being delayed on this or that count. In such circumstances, I find that
plaintiff cannot have benefit of cited case laws. On the contrary,
plaintiff nos. 2 to 11 and defendant no. 1 have correctly pointed out
that plaintiff is trying to delay the matter and has moved this Ch/s for
amendment of plaint with malafide intention to delay the matter. In
such circumstances I find that plaintiff is not entitled to relief of
amendment claim. Hence I proceed to pass following order.
O R D E R
1. Ch/s No. 662 stands dismissed/ disposed of.
2. As suit is pending for more than 27 years parties to the suit are
directed to cooperate the Court for early disposal of the suit.
(K.P.Nandedkar)
Judge,
City Civil Court,
Gr.Bombay
19.10.2018
Dictated on : 19.10.2018
Transcribed on: 29.10.2018
Signed by HHJ on: 30.10.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30.10.2018 11.00 am Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR
No.11)
Date of Pronouncement of
Judgment/Order.
19/10/2018
Judgment/order signed by P.O on 29/10/2018
Judgment/order uploaded on 30/10/2018
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