Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010098202019
Presented on : 25-09-2019
Registered on : 25-09-2019
Decided on : 06-04-2021
Duration : 1 years, 6 months, 11 days
IN THE COURT OF
COURT 1 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
CHAMBER SUMMONS/101741/2019
IN
SUIT NO.215 OF 2016
Shri. Shridhar Chandrakant Bandiwadekar ..Plaintiff
VERSUS
Vandana Prabhakar Pednekar ..Defendant
AND
Smt.Shriya Shridhar Bandiwadekar ..Applicant
Ld.adv. Rajguru for the plaintiff
Ld. advocate MR Patel for defendant
ORAL ORDER
(Delivered on 06-04-2021)
1. This chamber summons is for amendment of the plaint as per
schedule annexed to the chamber summons.
2. Heard.
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3. Ld. advocate for the plaintiff submittd that suit is for
simplicitor injunction without any prayer for specific
performance of the suit agreement. The plaintiff was not
aware of the nature of the suit being filed. The plaintiff
noticed that several material facts in relation to the suit are
not pleaded which are necessary for bringing the real
controversy between the parties. The defendant is denying the
receipt of amount of Rs.18 lacs. They are also not ready to
refund the same. Hence, the plaintiff wish to incorporate the
correct facts on record.
4. The defendant has filed reply to the chamber summons and
contended that plaintiff has suppressed the material fact of
filing the Chamber Summons no.1362 of 2016 for amendment
of plaint.
5. Ld. Counsel for the plaintiff placed reliance upon the law laid
down in the case of Usha Devi V/s Rajwan Ahamd and others,
(2008)3 Supreme Court Cases 717. No doubt the merits of
the amendment cannot be looked in. There is no quarrel
about the ratio in the case of Usha Devi(supra) that the merits
of the amendment cannot be looked in. Even the argument of
the Ld. Counsel for the plaintiff is that at the belated stage, the
amendment application can be allowed. In support of his
contention, he placed reliance upon the judgment of Hon’ble
Apex Court in the case of Surender Kumar Sharma V/s
Makhan Singh, (2009) 10 Supreme Court Cases 626. The
amendment can be allowed even at the belated stage. The
criteria laid down is that if it is found that the said amendment
is necessary for deciding real controversy between the parties.
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Ld. Counsel for plaintiff also argued that it is discretion of the
Court. He argued that it is discretion of the Court to allow the
amendment application depending upon the facts and
circumstances of the case and has to be exercised on a
judicious evaluation. He argued that The Hon’ble Supreme
Court in the case of Pankaja and another V/s Yellappa (dead)
by lrs and others, (2004) 6 Supreme Court Cases 415 held that
there is no absolute rule whether the relief is barred by
limitation and amendment should not be allowed. The
discretion in such case depends on the facts and circumstances
of the case. Since it is discretion of the Court to allow or not
the amendment is and the same will have to be exercised on
judicious evaluation of the facts and circumstances in which
the amendment is sought. If the granting of amendment is
subserving the ultimate cause of justice and avoiding further
litigation, the amendment should be allowed. There is no
quarrel about law laid down in the above cited judgment. The
argument of the Ld. Counsel for the plaintiff is that since the
issues are not framed in the matter it is the settled principle
that all the issues arising in respect of the same subject matter
should be decided in a single suit which would curb the
multiplicity of the proceedings and will lead to avoidance of
further complications. In order to support his case, he placed
reliance upon the judgment of Hon’ble Bombay High Court in
the case of Shakuntala Balasaheb Balsaraf since deceased
through her legal heirs and others V/s Ramdas Laxman
Balsaraf and others, 2013(2) Bom. C.R.207, wherein it is held
that the application of amendment should have been allowed
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by the trial Court to avoid multiplicity of the litigation to set at
rest question in controversy involved in the suit.
6. Admittedly in this matter the issues are not framed and trial is
not yet commenced and therefore the bar by virtue of proviso
under order 6 Rule 17 will not be applicable. The Court is not
even expected to go into the merits of the amendment at the
time of deciding the prayer for amendment but at the same
time the Court is not expected to overlook whether the
proposed amendment changes the nature of the suit or it is
malafide. The suit is for simplicitor injunction restraining the
defendant from creating third party interest in the suit
property. By way of amendment, the plaintiff wish to implead
his wife as co plaintiff when the suit proceeds on the ground
that entire transaction was entered into by plaintiff. The
amendment would change the nature of the suit,the suit will
be for specific performance of the contract. In the judgment of
Pankaja(supra) the issue was by way of amendment, the
declaration was sought by the plaintiffs that they are owners
of the suit property. The defendants of that case raised the
issue that the declaration sought by the plaintiff is barred by
limitation. The Hon’ble Apex Court held that the necessary
factual basis was in the plaint and therefore it was held that it
was incorrect to come to the conclusion that the plaintiff will
be introducing a different relief. In this suit the plaintiff by
way of amendment wish to alter the pleading and claiming
that the transaction was also entered into with the wife of
plaintiff. The plaintiff wish to add his wife also as co plaintiff.
There appears to material deviation from the pleadings.
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Altogether new facts of payment of Rs.17 lacs and sharing of
amount between plaintiff and defendant to be demanded by
Mr.Ghone. Thus, there is change in basic pleadings. No doubt
there is a pleadings of the agreement. The suit is admittedly
filed in the year 2016 and the chamber summons for
amendment was tendered in the year 2019 and limitation for
the relief of specific performance is three years as per Art.54 of
the Limitation Act. By way of proposed amendment, the
plaintiff wish to introduce the facts of mutual agreement of
2014 and wish to bring the suit within limitation which is not
permissible. Therefore, in these facts and circumstances of
this case, the issue of limitation cannot be given go bye
apparently when the plaintiff wants to change the injunction
to a suit for Specific Performance of Contract. In these peculiar
facts and circumstances the ratio in the above cited judgments
will not be helpful to the case of plaintiff. The plaintiff earlier
filed earlier chamber summons bearing no.1362 of 2016 and
has not tendered the same on record which was dismissed for
want of compliance and therefore technically also this
Chamber Summons does not survive. As pointed above, the
plaintiff has not made out case for allowing the chamber
summons. Hence, it is expedient to pass following order:-
ORDER
1. Ch/sum No.1741/19 stands rejected.
2. Costs in the cause.
(M.SALMAN AZMI)
Judge,
Date: 06.04.2021 City Civil Court, Gr.Bombay
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Dictated on : 06/04/2021
Transcribed on : 23/04/2021
Signed on : 31/05/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/06/2021 at 2.30 pm.
Mrs.T.C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
06/04/2021
Judgment and order signed by P.O. 31/05/2021
Judgment/order uploaded on 03/06/2021
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