Final Order 1

Order Details: Chamber summons
Pdf Text: C/s 782/2018 1/5 Date : 24.8.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No.MHCC010055752018
CHAMBER SUMMONS NO.782/2018
IN
SUIT NO.7778/2000
Ashok Agarwal ]... Plaintiff
V/s.
Mr. Ravinder Kumar Agarwal ]… Defendants
Adv. Jani for plaintiff.
Adv. Harjani for defendants no.1 to 4.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 24.08.2018
ORDER
(Dictated in open court)
1. By this chamber summons, the defendants no.1 to 4 are seeking
permission to amend the written statement as per the schedule annexed thereto.
The plaintiff has filed reply to oppose the chamber summons.
2. Heard Ld. Counsel for the parties. Perused the record.
3. By the proposed amendment, the defendants no.1 to 4 are seeking
permission to add paragraph no.5(d1) to the written statement. It is stated in the
affidavit filed in support of the chamber summons that while preparing the case for
crossexamination of the plaintiff, they realized that they have inadvertently not
stated some relevant facts in the written statement. Hence, they filed the present
chamber summons.
-- 1 of 6 --
C/s 782/2018 2/5 Date : 24.8.2018
4. It is urged by the Ld. Counsel for the defendants no.1 to 4 that the
proposed amendment is necessary for effective adjudication of the suit. He
submitted that the proposed amendment is not inconsistent or contradictory to the
case of the defendants no.1 to 4 pleaded in their original written statement.
5. As against this, the Ld. Counsel for plaintiff has urged that the prayer in
the chamber summons is frivolous and it cannot be allowed at this stage. He urged
that the defendants no.1 to 4 are trying to fill up the lacuna in their case and the
proposed amendment is contradictory to their original pleadings. He pointed out
the contradictions in the written statement and the proposed amendment.
6. I have perused the written statement filed by the original defendant no.1.
He has pleaded in paragraph no.5(h) of the written statement as under :
“...The Jolly maker 1 flat was allotted to this defendant inasmuch
as he had a big family. Further more, this defendant had given
money to the plaintiff to buy a flat in Bandra, Bombay...”
In the proposed amendment, the defendants no.1 to 4 are seeking to plead as
under.:
“.... the deceased Sardarilal had settled the plaintiff, defendant
no.1 and defendants no.2 & 3 and their families and provided
them for their accommodation and place to abode out of HUF
income....”
7. The Ld. Counsel for plaintiff has rightly submitted that the proposed
amendment is contradictory to the case of defendant no.1 in the written statement
as reproduced herein above. On one hand, the defendants are stating that
defendant no.1 had given money to the plaintiff to buy flat in Bandra and on
the other hand they are stating in the proposed amendment that deceased
Sardarila had provided the plaintiff accommodation and place of abode out of
-- 2 of 6 --
C/s 782/2018 3/5 Date : 24.8.2018
HUF income. Thus, the defendants no.1 to 4 are trying to make out a new case in
the proposed amendment, which is not only inconsistent to their original pleading
but also contradictory.
8. The Ld. Counsel for parties have placed reliance on the following rulings.:
i) Fritiz V/s. Sudhakaran (2002) 3 SCC 605.
ii) B. K. Narayana V/s. Parmeswaran (2000) 1 SCC 712.
iii) Jay Jay ram V/s. National Building (1969) 1 SCC 869.
iv) Revajeetu V/s. Narayanaswami (2009) 10 SCC, 84.
9. In the case of Fritiz (Supra), the issue before the Hon'ble Apex Court was
regarding amendment of the plaint. Amendment was sought in that case on the
ground that certain omissions and mistakes crept into the plaint inadvertently on
account of wrong advice given by the Counsel. The Trial Court rejected the prayer
for amendment and the Hon'ble High Court confirmed the same. The Hon'ble Apex
Court observed that the original plaint was cryptic and lacking in relevant
particulars. It was also found that the agreement regarding which plaintiff wanted
to amend the plaint, was undisputed agreement. In these facts and circumstances,
the Hon'ble Apex Court partly allowed the amendment.
10. In the case of K. Narayana (Supra) it has been held that the defendant
has right to take alternative plea in defence and all amendments which are
necessary for real controversy should be allowed. However, in the same ruling the
Hon'ble Apex Court has observed at page 717, paragraph no.4 that right to take
alternative plea is subject to an exception that by the proposed amendment,
the other side should not be subjected to injustice. It is held that inconsistent
and contradictory allegations or mutually destructive allegations of facts
should not be allowed to be incorporated by means of amendment to the
pleadings. Proposed amendment should not cause prejudice to the other side.
The said observations support the case of the plaintiff.
-- 3 of 6 --
C/s 782/2018 4/5 Date : 24.8.2018
11. In the instant case, the defendants are trying to raise contradictory and
mutually destructive pleas by proposed amendment. The fact situation in the case
of Fritiz (Supra) is totally different from the present case. Hence, said ruling is not
applicable to the present case.
12. In the case of Jay Jay Ram (Supra), the plaintiff had applied for changing
description in the cause title and Trial Court allowed the said prayer for
amendment and decreed the suit. In appeal before Hon'ble High Court, the
decision of Trial Court was reversed on the ground that there could be no
amendment of such a plaintiff who did not exist in the eye of law. The Hon'ble
Apex Court in these facts and circumstances, held that a party cannot be refused just
relief merely because of some mistakes, negligence or inadvertence. It is held that
amendment may be allowed if it can be made without injustice to the other side.
The fact situation in the said ruling is totally different from the present case. In the
instant case, it is not just "mistake" or "negligence" in the written statement, but the
chamber summons is filed on the ground that “certain relevant facts are not stated
in the written statement”. The defendants realised this after 10 years of filing written
statement.
13. There is no whisper in the affidavit as to why contradictory stand is taken
in the proposed amendment. On the contrary, in paragraph no.5 of the affidavit, it
is stated that the proposed amendment “due to inadvertence was not stated in the
written statement earlier and the same does not alter since it is merely addition to the
facts stated earlier by us.” Thus, despite changing the defence, the defendants no.1
to 4 are claiming to just add facts.
14. In the case of Revajeetu (Supra) the Hon'ble Apex Court has enumerated
the factors to be considered while dealing with applications for amendment. One of
the factors is whether the application for amendment is bonafide or malafide and it
-- 4 of 6 --
C/s 782/2018 5/5 Date : 24.8.2018
is laid down in the paragraph no.64 that Court must not refuse bonafide, honest
and necessary amendments and should never permit malafide, worthless and
dishonest amendment. As mentioned in paragraph no.18 of the Judgment, the
plaintiff in that suit wanted to seek declaration that the sale deed is valid and in
the original plaint it was the case that the sale deed has become void as per section
65 of the Contract Act. The Hon'ble Court has observed that the said amendment
has the effect of changing the character of the suit. Hon'ble Court dismissed the
application for amendment in that case with cost of Rs.1 lakh.
15. Considering the law laid down by the Hon'ble Apex Court in various
rulings and the original pleadings in written statement, I find that the proposed
amendment changes the character of the defence of defendants no.1 to 4. It is not
merely an omission to state facts due to inadvertence. The proposed amendment is
not bonafide and it has the effect of totally altering the defence of defendants no.1
to 4 and this will cause prejudice to the plaintiffs. It is necessary to note that the
main suit is at the stage of crossexamination of PW1 which has been partly
recorded. Hence, following order.
ORDER
The chamber summons no. 782/2018 is dismissed.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 24.08.2018 Gr. Bombay.
Dictated on : 24.08.2018
Typed on : 28.08.2018
Signed on : 28.08.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
28.08.2018 at 3.00 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
-- 5 of 6 --
C/s 782/2018 6/5 Date : 24.8.2018
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
24.08.2018
JUDGMENT/ORDER signed by
P.O. on
28.08.2018
JUDGMENT/ORDER uploaded
on
28.08.2018
-- 6 of 6 --