Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 1974-19 HC. C.S. No. 1854-2011
In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
1 Date 28.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1974 of 2019
H.C. CHAMBER SUMMONS NO. 1854 OF 2011
IN
SUIT NO. 5126 of 2007
H.C. SUIT NO. 1608 OF 2007
(CNR NO.MHCC010112132019)
Shri. Vipul Gopaldas Ashar … Plaintiff
Versus
Smt. Smita Subodh Joshi & Ors. .. Defendants
Appearances :
Adv.Deepak Lulia for plaintiff.
Adv.Sachin D. Mahagavkar i/b Divya Shah Associates for
defendant no.1 to 9.
Adv.Mr.Shah i/b Aniket Sharma for defendant no.10.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge.
C.R. No. : 7
Dated : 28.01.2020
ORDER
1. The plaintiff filed instant Chamber Summons for amendment
of plaint as per schedule.
2. It is contended by the plaintiff that he has filed suit for
declaration that as the irrevocable Memorandum of Understanding
dated 19.04.2007 and Supplemental letter dated 20.04.2007 made
and entered into by and between plaintiff and defendant no. 1 to 9
are valid and subsisting. Therefore, he has also prayed for
declaration that the defendant no. 1 to 9 are bound by the same
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In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
2 Date 28.01.2020
and should perform their obligation under the aforesaid
Memorandum of Understanding.
3. It is contended by the plaintiff that defendant no. 2 expired
in or around April 2011. The aforesaid fact was not within
knowledge of the plaintiff. On 25.07.2011 the plaintiff received
aforesaid knowledge from M/s. Prime Realtors when the copy of
their Civil Application (st) No. 19369 of 2011 in Writ Petition No.
3341 of 2011 was served upon the plaintiff. After verification, the
plaintiff is applied for deletion of defendant no. 2, as the
defendant no. 2 died unmarried leaving behind defendant no. 1
and 3 as her legal heirs.
4. It is further contended by the plaintiff that during pendency
of the suit, the defendant no. 1 to 9 by executing Deed of
Conveyance on 02.06.2010 in favour of M/s. Prime Realtors
transfer the suit property in favour of M/s. Prime Realtors. The
plaintiff had already registered lis pendens inspite of that the
alleged transfer has been affected by the defendant no. 1 to 9 in
favour of proposed defendant no. 10. Therefore, the aforesaid
Deed of Conveyance is illegal, invalid, inoperative and
unsustainable in law.
5. It is further alleged by the plaintiff that defendant have no
right to transfer the aforesaid property to the defendant no. 10. It
is further alleged by the plaintiff that M/s. Prime Realtors are
again tried to creat third party interest in the suit property.
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In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
3 Date 28.01.2020
Therefore, it is necessary to amend the plant and to add defendant
no. 10 as party defendant in the suit.
6. The Notice of Motion is opposed by the defendant no. 1 to 9
on the ground that the instant matter, the injunction has been
specifically refused by the Hon’ble High Court and by observing
that the documents on which the plaintiff is relying are apperas to
be bogus and fabricated. Therefore, the plaintiff had no right in
the suit property. The defendant no. 1 to 9 are having every right
to deal with the same and therefore, they have rightly transfer the
suit property to the defendant no. 10.
7. It is further contended by the defendant that plaintiff valued
present suit for Rs. 70,00,000/. However, now by way of
amendment the plaintiff is intending to challenged the Deed of
Conveyance dated 02.06.2010 which is for consideration of Rs. 1
crore 30 lacks. In order to avoid the payment of Court Fee, the
plaintiff by way of amendment is trying to incorporate the said
relief which not only attract payment of court ouster fee but also
out the jurisdiction of this Court. Therefore, the plaintiff can not
be permitted to carry out proposed amendement and thus,
Chamber Summons needs to be dismissed with cost.
8. Heard both the sides. Perused Chamber Summons and reply
as well as rejoinder. Following points arisen for my consideration.
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In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
4 Date 28.01.2020
Sr.
No.
Points Findings.
1. Whether this Court has
jurisdiction to try and entertain
the present Chamber Summons,
which if allowed would ouster its
jurisdiction
Yes.
2. Whether the plaintiff made out the
case for amendment of plaint?
Yes.
3. Whether the plaintiff is entitled to
add defendant no. 10 is party
defendant?
Yes.
4. Whether the plaintiff is entitled to
debt name of defendant no. 2
since deceased?
Yes.
5. What order? Chamber Summons
allowed in terms of
prayer clause (a) and
(b).
9. It is the contention of the plaintiff that during pendency of
the suit, the defendant no. 1 to 9 transfer the suit property by
Conveyance Deed dated 02.06.2010 in favour of M/s. Prime
Realtors. The plaintiff has filed present suit for specific
performance and declaration that Memorandum of Understanding
dated 19.04.2007 adn supplimentory letter dated 20.04.2007 is
valid and subsisting.
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In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
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10. It is first and prime objection of the defendant that the
plaintiff by way of proposed amendment is challenging the Deed
dated 02.06.2010 by which the pecuniary jurisdiction of this Court
would exceed. Therefore, the plaint needs to be returned to the
plaintiff for presenting the same before the appropriate Court and
appropriate court would consider the amendment, this Court have
no jurisdiction to try and entertain such Chamber Summons. The
defendant in respect of his submission has relied on the following
judgements.
a) AIR 1928 Madras 383 in case of P.I. Govindaraja
Naioker V/s. K. Kassim Sahib & Ors. in which Hon’ble
Madras High Court held that the Court which has no
jurisdction to try the suit as framed in the plaint, has no
jurisdiction to make any interlocatory order by way of
amendment of plaint except by way cost under Section 35 of
Civil Procedure Code. The court can not allow the
amendment of plaint to bring suit within its jurisdiction
where on the plaint as framed, the court has no jurisdiction
over the suit.
b) AIR 1935 ALL ALLAHABAD 842 in case of Tirkha
V/s. Ghasi Ram in which the Hon’ble High Court held that
order allowing the amendment which relates back to the
date of filing of the suit, the Court has no jurisdiction to
allow the amendment of the plaint untill and unless the
jurisdiction to entertain the suit.
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c) AIR 1953 (Nagput) 273 in case of Lalji Ranchhoddas
V/s. Narottam Ranchhodda in the aforesaid judgment, the
Hon’ble Division Bench of Nagpur High Court is held, that
the proposed amendment if, allowed would have exceed the
jurisdiction of the Court. The Court should not allow such
amendment and it should return the plaint to the proper
Court.
11. Per contra plaintiff relied on the judgment of Bombay High
Court reported in 1994 Mh.L.J. Page no. 1001 in case of
Devichand Ratanchand Solanki & Anr. V/s. Premshankar
Shivram Bajpayi in which the Single Judge of Hon’ble Bombay
High Court held that the Court can permit the amendment of the
pleadings which would result in ousting its own jurisdiction. It is
only after amendment is allowed and carried out, that objection in
regard to the jurisdiction of the Court can be raised. If the Court is
satisfied as regards outster of its jurisdiction, it has to return the
amended plaint for presentation to the proper Court under Order 7
Rule 10 of the Civil Procedure Code.
12. Plaintiff further relied upon AIR 1985 Bombay 462 in which
the Division Bench of Nagpur High Court while aswering the
reference made to it held that the Civil Court under Order 6 Rule
17 can allow the plaint to be so amended as to result in ousting its
own jurisdiction in the matter and in case the amendment is
allowd and carried out, the proper course to be followed is to
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In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
7 Date 28.01.2020
return the amended plaint to the plaintiff for presentation to the
proper Court. In the aforesaid judgment earlier judgment of AIR
1953 Nag 253 in case of Lalji Ranchhoddas V/s. Narottam
Ranchhoddas was also referred and further Hon’ble Court has
taken as decented view taken in the aforesaid case. First issue
involved in the present Chamber Summons which is required to be
considered in the present Chamber Summons is that whether this
Court have jurisdiction to allow the amendment in the plaint when
in fact, if proposed amendment is allowed would ouster
jurisdiction of this Court. I have gone through with the auhorities
relied by the defendant no. 10. Judgment in case of P.I.
Govindaraja Naicker V/s. K.Kassim Sahib & Ors., Judgement in
case of Johan Devadoss V/s. Ruth Moris of Hon’ble Madras High
Court which is having only pursuasive value. The judgment of
Hon’ble Bombay High Court reported in AIR 1953 Nag 273 in
case of Lalji Ranchhoddas V/s. Narottam Ranchhoddas, in
which the Hon’ble Division Bench held that the Court shall not
allow such amendment which if, allowed would relate back to the
date of filing of the suit and ouster jurisdiction of Civil Court. The
aforesaid issue once again was delt by Division Bench of Nagpur
High Court reported in AIR 1985 Bombay 462 in case of
Benisham Mohanlal Khetan V/s. Mahadeo Tukaram Borkar
wherein the reference was made to the Hon’ble Court. In the
above judgement, the Hon’ble Division Bench in its para No. 7
express their inability to conquer with the view taken by the earlier
Court in case of Lalji Rancchoddas V/s. Narottam Ranchhoddas.
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Therefore, in my view, the letter view taken is binding upon me.
Thus, considering the ratio laid down by the aforesaid judgment,
this Court have jurisdiction to try and entertain the application
which if allowed would ouster the jurisdiction of this Court. Thus,
I allow point No. 1 in affirmative.
13. The plaintiff filed instant application for amendment of
plaint on the ground that during pendency of the trial, the
defendant no. 1 to 9 transfer the suit property in favour of
proposed defendant no. 10. It is well settled law that in case of
amendment, if the proposed amendmet would goes to the root of
matter and would be necessary to decide the dispute between
parties. It is to be allowed. At the time of entertaining the
amendment application, the Court have nothing to do with the
merit of the amendment.
14. The plaintiff filed instant suit for declaration that
Memorandum of Understanding dated 19.04.2007 and
supplimentory agreement dated 20.04.2007 are binding upon the
defendant no. 1 to 9 and it is subsisting. Thus, the plaintiff’s case
is based upon specific performance of the obligations under
Memorandum of Unerstanding. The plaintif by way of proposed
amendment is seeking to incorporate subsequent event which has
occured during the pendency of the trial and affecting to his right.
Thus, in my view, the proposed amendment is necessary to decide
the lis between the parties. Hence, the amendment needs to be
allowed. Thus, I answered point no. 2 in affirmative.
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15. The plaintiff by way of propsed amendment is also seeking
addition of proposed defendant no. 10 as party in the suit. The
contention of party is governed by Order 1 Rule 10 (2) of C.P.C.
which provides that Court may at any stage of proceeding, either
upon or without the application of either party, and on such terms
as may appear to the Court to be just, order that the name of any
party improperly joined whether as plaintiff or defendant, be struct
out, and that the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence before
the Court may be necessary in order to enable the Court effectually
and completely to adjudicate upon and settle all the questions
involved in the suit, be added. It is the contention of the plaintiff
that defendant no. 1 to 9 transfer the suit property in favour of
defendant no. 10. In the event, he would succeed in the suit, the
transfer in favour of defendant no. 10 can also affect. Hence, the
proposed defendant no. 10 is the necessary party in the
proceedings. In support of his contention, the plaintiff relied on
orer dated dated 30.06.2017 passed by Hon’ble Bombay High
Court in Chamber Summons No. 1385 of 2012 in Suit No. 2457
of 2011 in case of Hon’ble Bombay High Court curled down
following criteria for addition of third party u/Order 1 Rule 10 (2)
of Code of Civil Procedure.
“(i) A third party purchaser who claims a subsequent title
from the plaintiff’s vendor can always be joined, both at the
instance of himself and the plaintiff, under Order 1 Rule 10 as
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a necessary party to a suit for specific performance between th
plaintiff and his (i.e. the plaintiff’s) vendor.
(ii) A third party purchaser who claims a prior title from the
plaintiff’s vendor may not be joined, whether at the instance of
the plaintiff or the purchase, if the contenst involves a
challenge to the title or possession of such third party
purchaser.
(iii) An agreement purchaser from the plaintiff’s vendor may
be joined on the application of the plaintiff if, it is the
plaintiff’s case that he has right to relief against the purchaser
arising out of , or in furtherane of, the same cause of action
against the original defendant, namely the breach of an
obligation owned by the original defendant to the plaintiff
under the suit agreement for sale.
(iv) An agreement purchaser from the plaintiff’s vendor may
not be joined on his (i.e. the purchaser’s) own application,
since his presence for the prupsose of enforcing, or protecting,
his rights under a rival agreement is foreign to the plaintiff’s
cause of action in the suit, namely, specific performance of the
plaintiff’s agreement for sale with the defendant vendor.
16. Thus, considering the aforesaid principles and provision of
Code, in the present case, proposed defendant no.10 is sought to
be joined by the plaintiff as the purchaser from the plantiff’s
vendor i.e. defendant no. 1 to 9. The plaintiff alleged that the
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11 Date 28.01.2020
agreement dated 2010 is not binding on the plaintiff. The plaintiff
further alleged that the proposed defendant no. 10 would create
third party interest or right preducially affecting the interest of the
plaintiff. Thus, in my view, the propsed defendant no. 10 is the
necessary party to be added in the dispute. It is admitted fact that
the defendant no. 2 has expired. It is the contention of the
plaintiff that defendant no. 1 was unmarried and defendant no. 1
and 2 are her legal heirs. Although the defendant denied the
aforesaid fact but did not brought to my notice any other legal
heirs of deceased defendant no. 2. In my view, the aforesaid
amendment of deletion of the defendant no. 2 from the title clause
is formal in nature which would not cause prejudice to the
defendant. Hence, it can be allowed. Thus, I answered point no. 3
in affirmative. Thus, I proceed to pass the following order :
ORDER
1. Chamber Summons No. 1974 of 2019 is hereby made
absolute in terms of prayer clause (a) and (b).
2. Plaintiff to carry out necessary amendment as per schedule
within 14 days from the date of order.
3. After the proposed amendment is carried out the plaint be
returned to the plaintiff under Order 7 Rule 10 of Code of
Civil Procedure, for presentation to the proper Court.
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Chamber Summons 1974-19 HC. C.S. No. 1854-2011
In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
12 Date 28.01.2020
4. Chamber Summons No. 1974 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge
City Civil & Sessions Court
Dated : 28.01.2020 Gr. Bombay
Dictated on : 28.01.2020
Transcribed on : 28.01.2020
Draft submitted on : 28.01.2020
Checked on : 03.02.2020
Signed on : 03.02.2020
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Chamber Summons 1974-19 HC. C.S. No. 1854-2011
In Suit No. 5126- 2007 H.C.Suit No. 1608 of 2007
13 Date 28.01.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/02/2020 at 11.30 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
28/01/2020
JUDGMENT/ORDER signed by
P.O. on
03/02/2020
JUDGMENT/ORDER uploaded
on
05/02/2020
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