Final Order 1

Order Details: Chamber summons
Pdf Text: Order in Chamber Summons
No. 1019 of 2019 in
Suit No.4358 of 2011
MHCC010053462019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
CHAMBER SUMMOINS NO.1019/2019.
IN
S. C. SUIT NO.4358/2011
Madhuri Ram Sabnis. ..Applicant/Plaintiff .
In the matter of :
Madhuri Sabnis. ...Plaintiff
V/s.
Sandeep Deshpande & Ors. ..Defendants.
And
Keystone Realtors Private Limited ..Respondent.
Appearances :
Adv. Amt a/w. Adv. Omprakash Jha a/w Adv.Vrinda Tambe for
plaintiff.
Adv. Sonal Rohit Gupta a/w. Ms. Shraddha Ambre and Ankita Ved i/b
Divya Shah Associates for defendant Nos.1.
Adv. Praveen Tiwari for defendant No.2.
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Order in Chamber Summons
No. 1019 of 2019 in
Suit No.4358 of 2011
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 07/07/2022.
ORDER
Plaintiff has taken out Notice of Motion to substitute
respondent as defendant No.3 by deleting present defendant No.3 and
to amend the plaint as per schedule1 annexed with Chamber
Summons.
2. Plaintiff contends that suit has been filed for the partition
and other reliefs in respect of suit flat. Plaintiff has adduced evidence
and examined the witness in respect of her claim. On 22.02.2019,
defendant No.3 has brought to the notice of the Court that defendant
No.3 is merged into respondent Company through the order of National
Company Law Tribunal. After merger, respondent is equally liable for
the due performance of the agreement. Therefore, plaintiff seeks to
substitute defendant No.3 with respondent as partyDefendant No.3.
Plaintiff further contends that during the pendency of the suit,
construction of the building was in progress. Building has been
completed by defendant No.3 and defendant No.1 has been allotted Flat
No.2003 (described more particularly in the Schedule1) under the
agreement dated 11.12.2018 for permanent alternate accommodation,
between the defendant No.1, defendant No.2 and respondent.
Therefore, schedule 'B' (Item No.1) showing the description of flat is
required to be deleted from the plaint and new flat which is now
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introduced and in accommodation of defendant No.1 is required to be
added in the plaint.
3. The plaintiff further contends that subsequent events or
changes are required to be incorporated in the plaint and proceeding, to
seek reliefs in the new flat. The amendment is permissible, even if, the
trial proceeded or is in progress, due to subsequent changes which will
enable this Court to pass decree in accordance with law. In view of the
fact that subject matter, the flat in the old building of the society is
demolished and the new building is constructed by developer and
possession of the respondent's flat has been given to the members as
well as legal heirs of the members on the strength of development
agreement executed between the society, members and the developer, if
amendment is allowed, no harm or prejudice will be caused to the
defendant. On the other hand, if amendment is not allowed, the same
will result into the miscarriage of justice to the plaintiff and she will not
get her 50% share in the new flat or any other relief under the
provisions of Partition Act. Hence, it is prayed that Chamber Summons
be allowed.
4. Defendant No.1 contested the chamber Summons by filing
his affidavit in reply. Defendant No.1 has not objected to substitute
respondent as a partydefendant No3 by deleting the original defendant
No.3. However, strong objection is raised to the other amendment as
per schedule1 annexed to the Chamber Summons. It is contended that
proposed amendment completely changes the nature of the suit. The
trial of the suit is over. The plaintiff was aware of the facts and had yet
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not amended the plaint in time which has resulted in accrual of rights in
favour of defendant No.1. If amendment is allowed at this stage, it
would cause great prejudice to defendant No.1 which can never
compensated in terms of money.
5. It is further contended by defendant No.1 that plaintiff was
aware of development agreement before filing of the suit. Plaintiff
ought to have included reliefs arising out of the redevelopment
agreement at the time of institution of the suit. Chamber Summons is
barred by limitation. Reliefs seeking direction against the defendant to
deposit in the Court plaintiff's 50% share in corpus, rent, shifting
charges, white goods and money in lieu of additional FSI is barred by
Resjudicata as same was disallowed by the Court and order of this
Court is upheld upto the Hon'ble Apex Court. Under the pretext of
amending the plaint, the plaintiff has tactfully proposed to carry out
substantial changes in the plaint that are either irrelevant or not
concerned with circumstances necessitating the filing of the present
chamber summons. Plaintiff is claiming mesneprofits which is barred by
limitation. The plaintiff is trying to seek the benefit under the same
agreement between the defendant No.1 and defendant No.3 which she
has originally prayed to cancel.
6. Defendant No.1 further contends that the Chamber
Summons is ultra vires to the provisions of CPC. Application for
amendment cannot be allowed after the trial is commenced, unless the
Court comes to the conclusion that inspite of due diligence, party could
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not have raised the matter before the commencement of trial. The
evidence of plaintiff, defendant No.1 is over. Defendant No. 2 has also
closed its evidence. Plaintiff with malafide intention has written letter
to defendant No.3 calling upon them to produce certain documents.
Plaintiff is trying to bring new documents by way of the Chamber
Summons. Therefore, Chamber Summons is liable to be dismissed. The
rest of the contentions in the reply are in form of denial and ultimately
it is prayed that save amendment for substituting defendant No.3, other
amendment be rejected by imposing exemplary costs.
7. In view of the above rival contentions, following points
arise for my determination, to which I record my findings for the
reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether the amendment is
necessary for the purpose of
determining real questions in
controversy between the
parties?
Yes
2. Whether the amendment is hit
by proviso to Order 6 Rule 17 of
CPC?
No
3. Whether plaintiff can be
permitted to carry out the
amendment?
Yes
4. What order? Chamber Summons
is allowed
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Reasons
8. Heard Ld. Advocate for the plaintiff and Ld. Advocate for
defendant No.1
9. Ld. Advocate for the plaintiff submits that the proposed
amendment is based upon the subsequent events. The amalgamation of
defendant No.3 has taken place in 2017 and said fact is brought to the
notice of the Court in 2019. The original suit flat is no more in
existence, therefore, on the basis of agreement between the defendant
No.1 and defendant No.3 executed in 2019, the new flat allotted to
defendant No.1 is required to be added in the suit as plaintiff is entitled
to claim her share in the said flat. The suit is for partition and
amendment is consistent with the nature of the suit. It will not change
the nature of the suit. The amendment is necessary for deciding real
question in controversy between the parties and same can be allowed in
terms of decision of the Hon'ble High Court of Madras in Solavaiammal
W/o. Ettiappa Goundar and Ors. V/s. Ezhumalai Goundar S/o.
Ettiappa Goundar and Anr., 2012 (1) CTC 159 and judgment of the
Hon’ble Apex Court in Revajeetu Builders and Developers V/s.
Narayanswami and sons and ors, (2009) 10 SCC 84.
10. Per Contra, Ld. Advocate for defendant No.1 vehemently
submitted that proposed amendment will change the nature of the suit.
The plaintiff is seeking to claim benefit under the agreement which
initially she has prayed for cancellation. The plaintiff was aware of facts
before commencement of the trial. Therefore, amendment is hit under
proviso of Order 6 Rule 17 of the CPC. Due diligence is neither pleaded
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nor proved by plaintiff. Therefore, this Court has no jurisdiction under
proviso of Order 6 Rule 17 to allow the amendment. The mesne profits
as prayed is barred by limitation. The plaintiff is trying to turn the suit
to head which is impermissible. The matter is for arguments. Time and
again plaintiff was pointed out the agreement even in the cross
examination. However, plaintiff was undiligent to carry out the
amendment. Plaintiff had made three attempts to bring on record some
documents, but those prayers of the plaintiff are rejected by the Court.
This is another attempt to bring on record those documents. Hence, she
submits that this Chamber Summons is liable to be rejected. She placed
reliance upon following authorities in support of her submissions:
1) M. Revanna V/s. Anjanamma (dead) by LRs and ors, (2019) 4
SCC 332
2) Vidyabai and Ors V/s. Padmalatha and Anr, (2009) 2 SCC 409
3) Archana Ashok Amburle V/s. Arpana Shankar Dudham and ors,
2019(2) Mh.L.J. 67
4) Chander Kanta Bansal V/s. Rajinder Singh Anand, (2008) 5 SCC
117.
As to Point No. 1:
11. Perused the Chamber Summons, affidavit in reply,
rejoinder of the plaintiff and pleadings in the plaint. The suit is filed by
the plaintiff against her brother i.e. defendant No. 1 claiming partition
of her 50% share in the flat originally owned by their father and other
movable articles which are described in schedule B annexed with the
plaint. Defendant No.2 is a Cooperative Housing Society and
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defendant No.3 is the developers. Initially in the suit, the plaintiff has
challenged the agreement entered between the defendant No.1,
defendant No.2 and defendant No.3 in respect of suit flat and has
sought for the cancellation of the said agreement of the flat. Now on the
basis of Permanent Alternate Accommodation Agreement dated
11.12.2018, plaintiff seeks to substitute the new flat, allotted to the
defendant No.1 as per the said agreement, for the old flat and to seek
reliefs in the said new flat by including consequential pleading in the
plaint.
12. Record of the suit shows that initially after filing the suit in
the Hon’ble High Court, plaintiff had taken out Notice of Motion for
interim relief of injunction. The Hon’ble High Court has observed and
ordered that if any agreement is entered between the developer and
defendant No.1, the same would be without prejudice to the plaintiff's
rights in the immovable property. Thereafter, in 2015 plaintiff taken
out another Notice of Motion seeking an order against defendant No.2
and 3, to enter into the Permanent Alternative Accommodation
Agreement jointly with plaintiff and defendant No.1. It is pertinent to
note that in the affidavit in reply filed to the said Notice of Motion,
defendant No. 1 has included undertaking that redevelopment of the
suit flat will be subject to the outcome of the suit.
13. Record further shows that in Notice of Motion No. 4004 of
2013, defendant No.1 was ordered to deposit 50% of the amount of
corpus in the Court and defendant No.1 was restrained from
withdrawing the amount from his pension account, N.S.S. account and
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P.P.F. account of his father. In A. O. No. 31/2014, the order directing
defendant No.1 to deposit 50% of corpus is upheld. In Notice of Motion
No. 1411 of 2015, plaintiff claimed 50% share in the rent, shifting
charges, white goods, etc in respect of the flat under Supplementary
Agreement and Permanent Rent Agreement to be entered into between
the defendants. The above relief claimed by the plaintiff came to be
rejected in the said Notice of Motion and that order is upheld upto the
Hon'ble Apex Court.
14. The above record reflects that during pendency of the suit,
plaintiff made several attempts seeking reliefs in respect of the re
development agreement between defendant No.1, defendant No.2 and
defendant No.3. It also indicates that in respect of the redevelopment
of the building in which suit flat was situated, though certain interim
reliefs claimed by the plaintiff are rejected by the Court, it is observed
that the agreement which would be entered between the defendants for
development of the property would be without prejudice to the rights of
the plaintiff in the suit flat. It is pertinent to note that while restraining
defendant No.1 from creating third party interest in the suit flat, liberty
was granted to defendant No. 1 to enter into the agreement in respect
of development of the property with specific observation that any such
agreement would be without prejudice to the rights of the plaintiff in
the immovable property.
15. It is admitted position that the original suit flat described in
Exhibit B annexed with the plaintiff is no more in existence as the old
building is demolished as per development agreement. It also appears
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that on the basis of Agreement for Permanent Alternate Accommodation
entered between defendant No.1 and defendant No.3, new flat is
allotted to defendant No.1 in lieu of the old flat. The above agreement
is entered into during pendency of the suit. The agreement is executed
on 11.12.2018 and immediately thereafter the present Chamber
Summons is taken out in March 2019.
16. In view of the nature of the suit, though plaintiff initially
challenged the development agreement between the defendants, the
proposed amendment is not inconsistent. The suit being for partition,
when plaintiff has claimed that she has ½ share in the property which
was owned by her deceased father, the proposed amendment seeking
reliefs in the new flat allotted to defendant No.1 in lieu of the old flat,
which was claimed to be owned by the father of plaintiff is consistent
with the original nature of the suit. Therefore, in my considered view,
the proposed amendment will not change the nature of the suit. The
amendment is necessary for the purpose of determining the real
questions in controversy between the parties. Therefore, above point is
answered in the affirmative.
As to Point No.2:
17. Defendant No.1 has objected the amendment on the
ground that the trial has commenced and the suit is on the stage of
argument. The plaintiff was aware of the facts before commencement of
the trial. However, the plaintiff has neither pleaded nor proved that he
was diligent. Therefore, this Court has no jurisdiction to allow
amendment as it is hit by proviso to Order 6 Rule 17 of CPC. However,
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this objection cannot be sustained for the reason that the Permanent
Alternate Accommodation Agreement is executed between defendant
No.1 and defendant No.3 during pendency of the suit on 11/12/2018.
18. The rights in the new flat are crystalized only after coming
into existence of the above agreement, though development agreement
which initially the plaintiff challenged in the suit, was executed prior to
institution of the suit. Thus, it is clearly a subsequent event making
inapplicable the proviso to Order 6 Rule 17 of CPC to the present case.
Accordingly, the above point is answered in the negative.
As to Point Nos.3 and 4:
19. Ld. Advocate for defendant No.1 submitted that the
Chamber Summons is time barred as well as the reliefs sought to be
introduced are barred by the principle of Res Judicata. However, these
submissions cannot be accepted. It is settled proposition of law that
merit of the amendment cannot be gone into at the time of deciding the
prayer for amendment. Moreover, the orders referred by the Ld.
Counsel for defendant No.1, while invoking the principle of Res
Judicata are all the interim orders. The issue regarding the rights of the
plaintiff in the suit properties, particularly the suit flat is yet to be
finally decided. Therefore, S.11 of CPC is prima facie not attracted to
the proposed reliefs.
20. All the four authorities relied upon by the Ld. Advocate for
defendant No.1 in M. Revanna V/s. Anjanamma (dead) by LRs and
ors, (2019) 4 SCC 332, Vidyabai and ors V/s. Padmalatha and anr,
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(2009) 2 SCC 409, Archana Ashok Amburle V/s. Arpana Shankar
Dudham and ors, 2019(2) Mh.L.J. 67 and Chander Kanta Bansal
V/s. Rajinder Singh Anand, (2008) 5 SCC 117 are on proviso to
Order 6 Rule 17 of CPC. It is already held while recording negative
finding on point No.2 that the amendment in the case at hand is not hit
by the proviso to Order 6 Rule 17. Therefore, with due respect, none of
the authorities, referred by defendant No.1 can be made applicable to
the present case.
21. In Solavaiammal V/s. Ettiappa Goundar V/s. Ezhumalai
Goundar S/o. Ettiappa Goundar, (supra), relied upon by the plaintiff,
the issue before the Hon’ble Court was inclusion of left out property in
partition suit at the instance of defendant. The facts of the present case
are altogether different. Therefore, the above authority cannot be made
squarely applicable to the present case.
22. In Revajeetu Builders and Developers V/s.
Narayanswami and sons and ors, (supra), relied upon by the plaintiff,
the Hon’ble Apex Court has laid down certain important factors to be
taken into consideration while dealing with applications for
amendment. These are as under
67. On critically analyzing both the English and Indian cases,
some basic principles 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 bona 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.
23. Even Ld. Advocate for defendant No.1 placed reliance upon
the above authority referred by the plaintiff in support of her
submissions. It is already held that the amendment will not change
nature of the suit. Pursuant to the change/substitution of the subject
matter i.e. the flat, the amendment is imperative for proper and
effective adjudication of the suit. The amendment does not appear to be
malafide. There is no possibility that the amendment will cause any
prejudice to defendant No.1. Defendant No.1 will get opportunity to file
additional written statement, if any, to the amended plaint. In the facts
of the present case, refusing amendment would lead to injustice to the
plaintiff and may lead to multiplicity of the proceedings.
23. In the light of the above observations, in my considered
view, the amendment is imperative for conclusive adjudication of the
dispute between the parties. Therefore, the prayer for amendment
deserves to be allowed. In the result, point No.3 is answered in the
affirmative and following order is passed:
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No. 1019 of 2019 in
Suit No.4358 of 2011
ORDER
1. Chamber Summons No. 1019 of 2011 is made absolute in
terms of the prayer clause (a) and (b).
2. Plaintiff shall carry out the amendment within 14 days from
the date of this order and shall submit copy of amended plaint on
record.
3. Plaintiff shall serve copy of amended plaint upon the
defendants.
4. Chamber Summons No. 1019 is disposed of accordingly.
(SHRI S. B. PAWAR )
Judge
Dt.:07/07/2022 City Civil Court, Gr.Mumbai
Declared on : 07.07.2022
Dictated on : 07.07.2022
Transcribed on : 08.07.2022 & 10.07.2022
Checked & Signed on:
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14.07.2022 at 2.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 07.07.2022
Order signed by P.O. on 08.07.2022
order uploaded on 16.07.2022
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