Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.2163-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.2163 OF 2019
IN
SUIT NO.2852 OF 2010
CNR NO. MHCC01-012520-2019
Kumar Chandravadan Pathak … Plaintiff
Vs.
Hansa wd/o. Chandravadan Pathak &
Ors.
… Defendants
Appearances:
Ld. Adv Dinesh Shah for the plaintiff.
Ld. Adv Mangal Kadam for defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATE : 17th MARCH 2021
ORDER
The plaintiff has taken out this chamber summons under
Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short “CPC”).
2. Heard the learned Advocate for the parties. Perused the
record.
3. The learned Advocate for the plaintiff has submitted that in
the plaint, there is a reference of the letter dated 12.09.2002, but
inadvertently, the plaintiff could not annex a copy of that letter to the
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plaint and seek a declaration that the said letter is illegal, bad-in-law
and void. According to him, the proposed amendment would not
change the nature of the suit, and therefore, the chamber summons may
be allowed. He has laid strong emphasis on the decision in Maruti
Vithoba Kulal Vs. Nivrutti Deoram Kulal (Writ Petition No.8320 of 2017
dated 15.03.2018) to bolster up his contentions.
4. Countering this submission, the learned Advocate for
defendant No.4 has submitted that after the commencement of the trial,
the plaintiff has taken out this chamber summons to amend the plaint.
The proposed amended is barred by law of limitation, and therefore, in
view of the embargo contained in Rule 17 Order VI of CPC, the plaintiff
cannot be allowed to amend the plaint.
5. In Maruti Kulal’s case (
cited supra), the plaintiff had
carried out an amendment in the plaint and incorporated additional
relief. Pursuant to that amendment, the defendants had filed an
application to amend the written statement and file a counterclaim at
the stage of judgment. On the facts of that case, the Hon’ble Bombay
High Court allowed the application for amendment.
6. Admittedly, the plaintiff has taken out this chamber
summons at the stage of the final argument. It cannot be gainsaid that
after the amendment of 2002 in Rule 17 of Order VI of CPC, the
discretionary power of the Court to allow amendments in the pleading
after the commencement of the trial has been curtailed.
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7. In M. Revanna Vs. Anjanamma and others (2020(1) Mh.L.J.
143), the Hon’ble Supreme Court has held that amendment of pleadings
after the commencement of trial, not permissible except under
conditions stated in the proviso. A person seeking amendment after
commencement of trial to show “due diligence”. Amendment cannot be
claimed as a matter of right nor has court absolute discretion to allow
amendment in view of the proviso.
8. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC
409], the Hon’ble Supreme Court has observed in para 19 as under:
“19. It is the primal duty of the Court to decide as to
whether such an amendment is necessary to decide the real
dispute between the parties. Only if such a condition is
fulfilled, the amendment is to be allowed. However, proviso
appended to Order 6 Rule 17 of the Code restricts the
power of the court. It puts an embargo on the exercise of
its jurisdiction. The court’s jurisdiction in a case of this
nature is limited. Thus unless the jurisdictional fact, as
envisaged therein, is found to be existing, the court will
have no jurisdiction at all to allow the amendment of the
plaint”.
9. It is, therefore, necessary to see whether the plaintiff can
show that despite due diligence, he could not raise the matter before
the commencement of the trial.
10. From the affidavit in support of the chamber summons, it is
manifest that the copy of the letter dated 12.09.2002 was available with
the plaintiff. It has been contended that when the matter was fixed for
arguments, he realized that the copy of that letter was not annexed to
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CS No.2163-2019
the plaint. So, on or about 10.03.2016, he handed over that letter to
his Advocate. Thereafter, his Advocate preferred the compilation of
documents on or about 14.03.2016.
11. It is, thus, limpid that in March 2016, the plaintiff knew
that the copy of the letter dated 12.09.2002 was not annexed to the
plaint. Despite that, he has belatedly filed the present chamber
summons on 28.11.2019. No just or plausible explanation is
forthcoming to justify the inordinate and unprecedented delay of more
than three years in filing the present chamber summons. So, it cannot
be said that despite due diligence, the plaintiff could raise the matter
before the commencement of the trial.
12. The plaintiff by the proposed amendment intends to seek a
declaration that the said letter is void. As per the provision of Article 58
of the Limitation Act, 1963, relief of declaration can be sought within
three years from the date when the right to sue first accrues.
13. It is to be highlighted that neither in the plaint nor in the
chamber summons, the plaintiff has spelt out as to when the cause of
action to seek a declaration about the letter dated 12.09.2002 had
arisen. The plaintiff has filed the present suit on 19.07.2010. The cause
of action for filing the present suit is shown have been arisen in
September 2005. So, on the date of filing of the present suit, the relief
of declaration about the letter dated 12.09.2002 was time-barred. On
this count, the chamber summons is liable to be dismissed.
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14. The chamber summons is thus not only time-barred but
also there was a lack of diligence on the part of the plaintiff. As a
corollary, the chamber summons is liable to be dismissed. Accordingly, I
hold that chamber summons is liable to be dismissed and proceed to
pass the following order:
ORDER
1. Chamber Summons No.2163 of 2019 is dismissed.
2. No order as to costs.
3. Chamber Summons No.2163 of 2019 is accordingly
disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Date : 17/03/2021 City Civil Court, Gr. Bombay
Dictated on : 17/03/2021
Transcribed on : 17/03/2021
HHJ signed on : 17/03/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
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18.03.2021 12.56 p.m. ARUN ANNAMALAI MUDALIYAR
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HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
17.03.2021
JUDGEMENT /ORDER signed by
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JUDGEMENT /ORDER uploaded
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