Final Order 1

Order Details: Chamber summons
Pdf Text: CHS.No.2071/2019 : 1 : BCC.SU.No.9046/2000
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 2071 OF 2019
IN
B.C.C. SUIT NO. 9046 OF 2000
CNR NO. MHCC01-011733-2019
Ida Flavia Fernandes .. Plaintiff.
V E R S U S
1. Cecilia Fernandes and Others. .. Defendants
Appearance:
Advocate Ms. Geeta Sonawane @ Advocate Ms. Srushti Thorat for
the Plaintiff.
Advocate Ms. Alka Mungekar for Defendant no.1.
CORAM : H.H.J. SMT. S.S. NAGUR,
ASSISTANT SESSIONS JUDGE,
(C.R.NO.13)
DATE : 04th March, 2020.
ORAL ORDER
1. This chamber summons is filed by the plaintiff to amend the
plaint as per schedule annexed to the chamber summons. The
chamber summons is supported by affidavit of Ida Flavia
Fernandes. The plaintiff stated that the suit is filed against the
defendants for ascertaining the assets of the deceased Leopoldo
Joaquim Fernandes, for partition and to hand over the shares to
the plaintiff. The defendant no.12 is the widow of deceased Leo
Fernandes, and the deceased married defendant no.1 while his
marriage to defendant no.12 was subsisting. Therefore, the
marriage of defendant no.1 was void ab-initio. The plaintiff stated
that at time of filing the suit, the plaintiff was not aware that
Lidianna Fernandes i.e. defendant no.12 is also known as Anna
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Limba. The defendant no.1 filed chamber summons No.581 of
2019, wherein she stated that the deceased Leopoldo Fernandes
was married to one Anna Limba. Therefore, prayed to allow to
carry out the amendment in respect of name in the title cause of
defendant No.12 showing the name alias Anna Limba in front of
Mrs. Lidianna Fernandes and to carry out consequential
amendment in that respect wherever necessary in the plaint.
2. The defendant no.1 filed reply to the chamber summons
through affidavit of Mrs. Cecilia Fernandes. The defendant has
denied the contents of the chamber summons in toto. The
defendant stated that under the guise of amendment a new person
as defendant no.12 is being attempted to implead. A new party is
being added after 17 years, and in case it is allowed, it will be
barred by limitation. The plaintiff failed to prosecute with due
diligence. Mrs. Lidiana Fernandes as defendant no.12 in the
amended plaint is a fictitious person and various addresses shown
in the latest amended plaint are also fictitious. The defendant no.1
has denied the identity of defendant no.12 and her relationship
with deceased Leopolda Fernandes. In the chamber summons
bearing no.581/2019 to amendment of written statement the
Plaintiff confirmed the name of Defendant No.12 was Lidiana
Fernandes and not Anna Limba. Therefore, the chamber summons
is not tenable and prayed to dismiss.
3. The Plaintiff has filed rejoinder affidavit and has denied the
contents of the reply filed by Defendant No.1 in toto. The Plaintiff
has stated that she was not aware that Defendant No.12 Mrs.
Lidiana Fernandes was also known as Anna Limba. It is only after
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defendant no.1 filed Chamber Summons No.581 of 2019, she
requested to his Advocate to add Mrs. Lidiana Fernandes alias
Anna Limba. The amendment in the plaint is in respect of the
name of defendant no.12 for her identity in the Society. It is the
contention of the plaintiff that she is known as Mrs. Lidiana
Fernandes alias Anna Limba. The said change in the plaint will not
cause any prejudice to defendant no.1. It is for the plaintiff to
prove the identity of defendant no.12 and the relationship of
defendant no.12 with deceased Leopolda Fernandes. The objection
of limitation considering the nature of relief which is in respect of
the property of deceased Leopolda Joaquim Fernandes will not
arise as there is only “alias” name is to be added.
4. Heard the learned Advocate Ms. Geeta Sonawane for the
Plaintiff and learned Advocate Ms. Alka Mungekar for Defendant
No.1. Perused the contents of chamber summons and reply
supported by affidavit and also gone through the record. I have
also gone through the notes of arguments of defendant no.1.
5. The defendant no.1 has raised the basic issue of law of
limitation to show that the chamber summons is not tenable and it
will cause serious prejudice to the plaintiff and defendant no.1.
The Defendant in the written arguments has shown whereby the
plaintiff has amended the chamber summons as under:
Sr.No. Chamber Summons No. Purpose
1. 346/2001 To implead “Lidiana Fernandes” as
Defendant No.12.
2. 2836/2014 To bring on record Legal Heirs of
Defendant Nos.2, 4 & 5 (of 5
already on record as Defendant
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Sr.No. Chamber Summons No. Purpose
Nos.6 & 7)
3. 2379/2015 Application made by Mrs. Natalina
Fernandes to bring on record heirs
of Defendant No.2 i.e. 2(a) to 2(d)
and heirs of Defendant No.4 viz. 4
(a) an 4(b).
4. 237/2019 To bring on record Legal Heirs of
Defendant nos.2(c) and 4(a)
6. The plaintiff in the chamber summons desires to incorporate
the name of defendant no.12 Mrs. Lidiana Fernandes as alias Anna
Limba with consequential pleading in the plaint. The defendants
are objecting the amendment on the ground that the plaintiff has
earlier carried out amendment and in that she has categorically
stated that defendant no.12 is Mrs. Lidiana Fernandes. Therefore,
the present amendment is not tenable and is not within the period
of limitation.
7. The defendants have filed pursis dated 22.01.2020, stating
that he is relying on the communication by letter in between
plaintiff and defendants to show that communication between the
parties in respect of the chamber summons.
8. The defendants has relied on the authority reported in :
i) M/s. South Konkan Distilleries
Vs.
Prabhakar Gajanan Naik & Ors.
[(2008) 14 SCC 632]
ii) Chander Kanta Bansal
Vs.
Rajinder Singh Anand
[(2008) 5 SCC 117]
that delay and latches on the part of the party would be relevant
factor to decline to amend the pleading.
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iii) K Raheja Constructions Ltd. & Anr.
Vs.
Alliance Ministers & Ors.
[AIR 1995 SC 1768]
iv) Gurdial Singh and Ors.
Vs.
Raj Kumar Aneja and Ors.
(Appeal No.2896/2001, Hon’ble Supreme Court)
that all such amendments shall be made as may be necessary for
the purpose of determining the real questions in controversy
between the parties. Unless and untill the court is told how and
in what manner the pleading originally submitted to the court is
proposed to be altered or amended, the court cannot effectively
exercise its power to permit amendment. An amendment may
involve withdrawal of an admission previously made, may
attempt to introduce a plea or claim barred by limitation, or may
be so devised as to deprive the opposite party of valuable right
accused to him by lapse of time.
v) Radhika Devi
Vs.
Bajrangi Singh & Ors.
[AIR 1996 SC 2358]
that the amendment which was sought to be made was treated
to be clarified was therefor upheld. This ratio will not apply to a
fact in situation where the party acquires right by bar of
limitation.
vi) Heeralal
Vs.
Kalyan Mal & Ors.
[AIR 1998 SC 618]
that the amendment which take away the statement of
admission cannot be allowed.
vii) M.B. Sirkar and Sons
Vs.
Powell and Co.
(AIR 1956, Calcutta High Court, 630)
that in this facts by amendment the original defendant in the
suit shown as a firm was converted into a company of the same
name. The Hon’ble Supreme Court held that when one legal
entity to be substituted for another, it cannot possibly be said
that the entry proposed to be substituted was misdescribed in
the plaint as originally filed.
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9. On the other hand, the Plaintiff has relied on the authority
reported in:
i) Puran Ram
Vs.
Bhaguram & Anr.
(Appeal No.1673 of 2008, Hon’ble Supreme Court)
that no question of limitation shall arise when misdescription of
name of the suit property arose in particular case.
ii) Surendra Kumar Sharma
Vs.
Makhan Singh
(Appeal No.6400/2009, Honble Supreme Court)
that even if the amendment of 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 cost.
iii) Rajesh Kumar Aggarwal & Ors.
Vs.
K.K. Modi & Ors.
(Appeal No.5350-5351/2002, Hon’ble Supreme Court)
that while considering whether an application for amendment
should or should not be allowed, the court should not go into
the correctness or falsify of the case in the amendment.
Likewise it should not record a finding on the merits of the
amendment and the merits of the amendment sought to be
incorporated by way of amendment.
iv) Sampath Kumar
Vs.
Ayyakannu & Anr.
(Appeal No.5839/2002, Hon’ble Apex Court)
that in the facts of the case, the suit was filed for permanent
injunction against dispossession. During the pendency of the
suit the Plaintiff was dispossessed. The amendment application
may asked to amend the plaint to get the possession. It is in
these facts held that though the Plaintiff may have remedy to
file fresh suit, it order to avoid multiplicity of proceeding, can be
allowed to amend the plaint.
v) Jai Jai Ram Manohar Lal
Vs.
National Building Material Supply, Gurgaon
(Appeal No.697/1966, Hon’ble Supreme Court)
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that the power to grant amendment of the pleadings is intended to
serve the ends of justice and is not governed by any such narrow.
10. The plaintiff has filed this suit against Defendants in respect
of property of deceased Leopolda Fernandes. The defendant no.12
is implead during the pendency of the suit. It is the contention of
the Plaintiff that defendant no.12 is widow of said deceased Leo
Fernandes, who married defendant no.1 while his marriage was
subsisting. Therefore, the marriage of defendant no.1 with
deceased Leo Fernandes is void ab-initio. The Plaintiff has stated
in the plaint that defendant no.1 has no concern with the
properties of deceased Leopolda Joaquim Fernandes and disputing
the relationship of defendant no.1 with the deceased.
11. I have gone through the authorities relied by both the
parties. The amendment which causes prejudice and changes the
nature of the suit itself cannot be allowed. In the present facts the
amendment is only to show the alias name of defendant no.12
being known in the society.
12. Considering the nature of the suit between the parties, the
amendment will not cause any prejudice to the Defendants. On
the contrary, it will decide real question in controversy between the
parties. The Defendants can be compensated with costs. Hence,
pass the following order.
ORDER
1. Chamber Summons No.2071 of 2019 is
allowed on payment of cost of Rs.1500/-
(Rupees One Thousand Five Hundred
only) to be paid to Defendant No.1 within
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one month from the date of the order.
2. On payment of the above cost, with in the
above period the prayer ‘a’ of chamber
summons is made absolute.
3. The plaintiff to carry out necessary
amendment within a period of limitation.
4. Accordingly, the Chamber Summons
No.2071 of 2019 is disposed of.
(Smt. S.S. Nagur)
Date: 04.03.2020 Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 04/03/2020
Transcribed on : 06/03/2020
Sign on : 07/03/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
(S.G.)
07/03/2020 4.30 p.m. Mrs. Pradnya S. Naik
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
04.03.2020
Judgment/order signed by P.O on 07.03.2020
Judgment/order uploaded on 07.03.2020
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