Bombay High Court
Sasa Detergent Division vs Shri Damodar S Mudliyar on 6 January, 2012
Author: R M Savant
Bench: R M Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1216 OF 2011
Sasa Detergent Division ]
Shri Mahila Griha Udyog Lijjat Papad, ]
Village - Varsave, Ghodbander Road, ]
Taluka Thane, District Thane, ]
Through Authorized Signatory ]
Induben Raut ].... Petitioner
versus
1 Shri Damodar S Mudliyar
ig ]
Age Adult, Occ - Business ]
Residing at - 104A/A, Krishna Building ]
Vishal Nagar, Marve Road, ]
Malad (W), Mumbai 400 064 ]
]
2 Daudayal Iswarprasad Ajmera ]
Adult, Occ - Nil ]
Residing at-230/A Jaldarshan, ]
Ruia Park, Juhu, Mumbai 400 049 ]
]
3 Mrs.Reba Devnarayan Ghosh ]
Age 58 years, Occ - Business ]
]
4 Mrs.Debashish Devnarayan Ghosh ]
Age 38 years, Occ - Business ]
]
5 Miss. Sonali Narayan Ghosh ]
Age 27 years, Occ - Nil ]
]
Respondent Nos.3 to 5 are ]
Residing at Security Bungalow, ]
Opp. Hanjer Cinema, S V Road, ].... Respondents.
Mumbai 400 102 ]
Mr.Sugandh B Deshmukh for the Petitioner.
Mr.A Y Sakhare, Senior Advocate with Mr. Pankaj C Kansara for the
Respondent No.1.
CORAM : R M SAVANT, JJ.
DATE : 06th JANAURY 2012 ::: Downloaded on - 09/06/2013 18:03:21 ::: 2 wp-1216.11.sxw ORAL JUDGEMENT 1 Rule, with the consent of the parties made returnable forthwith and heard.
2 The above Writ Petition takes exception to the order dated 20th December 2010 passed by the learned IInd Joint Civil Judge, Senior Division, Thane by which order the Application Exhibit 83 for amendment came to be allowed and the amendment in terms of the schedule to the amendment Application was allowed to be incorporated in the plaint.
3 Shorn of unnecessary details, a few facts necessary for adjudication of the above Petition can be stated thus :
The Petitioner herein is the Original Defendant No.5 in the Suit filed by the Respondent No.1 herein for specific performance of the Agreements dated 19/4/1992 and 20/11/1992 in respect of the lands bearing Survey Nos.141/1 and 141/3. The said suit has been filed by the Respondent No.1 herein against the Petitioner and Respondent Nos.2 to 5 herein. The Petitioner herein also has an Agreement in its favour from the Defendant No.1 i.e. the Respondent No.2 herein. The Respondent No.2 had entered into an Agreement for Sale with the Petitioner on 9/7/1997 pursuant to which the possession of the property, which is the subject matter of the suit, came to be handed over to the Petitioner herein i.e. the original Defendant No.5. It is ::: Downloaded on - 09/06/2013 18:03:21 ::: 3 wp-1216.11.sxw relevant to note that the Respondent No.1 herein, who is the Plaintiff amended the plaint in the year 1998 and in Para 15A, which was incorporated pursuant to the said amendment being allowed, it has been stated to the following effect:- (Excerpt from Paragraph No.15-A) "The Plaintiff also found that the sign-board of the consumer good product SASA was displayed at the entrance of the suit property. The said development was noticed by the Plaintiff very late and as the Plaintiff had not visited the suit property since after the date of the instituion of the suit. Upon further enquiry made in that regard the Plaintiff came to know that the Defendant No.1 had illegally transferred the suit property in the name of the Defendant No.5 and an inaugural function was also held on the site of the suit property some time int he month of November 1997."
"The impugned transaction by and between the Defendant No.1 and the Defendant No.5 is illegal, null and void and not binding on the Plaintiff"
Prior to that the Defendant No.1 had filed his written statement on 16/1/1997 and it is stated by the Defendant No.1 in his written statement in Paras 6 (excerpt) and 8 as follows :-
"This Defendant states that land bearing Survey No.41, Hissa No.3 admeasuring 3034.60 sq.meters and land bearing Survey No.41, Hissa No.1 (Part), admeasuring 3439.30 sq.meters of Village Varsova, Taluka and District Thane. This Defendant states that the said properties are in exclusive physical possession of this Defendant as the owner thereof."
"8 With reference to para 1 of the plaint, this Defendant denies that he was owner or well and sufficiently entitled to the property bearing Survey No. 141, Hissa No.1(Part), admeasuring about 34 Gunthas i.e. equivalent to 3439.30 sq.meters and Survey No. 141, Hissa No.3, admeasuring about 30 Gunthas i.e. equivalent to 3034.60 sq.meters of Village Varsova, ::: Downloaded on - 09/06/2013 18:03:21 :::
4 wp-1216.11.sxw Taluka and District Thane as alleged. IN this connection, this Defendant states that he is absolutely seized and possessed and/or well and sufficient entitled to the land bearing Survey No.41 Hissa No.3 admeasuring 3034.60 sq.meters and land bearing survey No.41, Hissa No.1(Part), admeasuring 3439.30 sq.meters of Village Varsova, Taluka and Distric tThane, together with factory shed standing thereon. This Defendant therefore states that he has nothing to do with the survey numbers referred by the Plaintiff in para 1 of the Plaint."
Thereafter the parties went to trial and the evidence of PW No.1 has been recorded wherein the PW No.1 i.e. the Plaintiff has admitted the document in question i.e. the Agreement (Exhibit 42) between the Defendant No.1 and Devnarayan Ghosh and the subject matter of the said Agreement is Survey Nos.
141/1 Part and 141/3 Part at village Varsave. The PW No.1 thereafter volunteered that the map of the suit property is annexed with the said agreement which shows the number of suit property as Survey No.41.
Thereafter additional Issues have been framed in the said suit which are to the following effect :-
Additional Issues :-
1] Whether the Plaintiff proves that there is previty of contract between him & Defendant No.5 ?
2] Whether the suit is bad for non-joinder & mis-
joinder of necessary party ?
3] Whether the suit is within limitation ?
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4] Whether the defendant No.5 proves that the
defendant No.1 executed deed of conveyance on
9th July 07 in favour of the defendant No.5 in
respect of acquired portion of the suit property?
The Respondent No.1 herein has moved the instant Application on 28/7/2009 for amendment of the Plaint in terms of the schedule. The amendment sought is two fold, the correction of the description of the suit property from Survey Nos.141/1 Part and 141/3 Part to Survey No.41. The second part of the amendment is for incorporating a prayer for challenging the deed of conveyance dated 9/7/2007 executed by the Defendant No.1 in favour of the Defendant No.5 i.e. the present Petitioner during pendency of the said Suit.
The reason mentioned for seeking the said amendment, as can be seen from the Application, is that through oversight Survey No.141 in stead of the correct Survey No.41 has been mentioned and that it is only after the Defendant No.5 has filed its written statement on 24/7/2007 that the Plaintiff became aware of the the conveyance deed dated 9/7/2007 executed by the Defendant No.1 in favour of the Defendant No.5. Save and except the said reason the Application is bereft of any reasons as to why the same could not be moved earlier. The said Application was opposed by the Defendant No.5 by filing a reply. The trial Court as stated herein above by the impugned order has allowed the said Application and has, by applying the principle of dominus litus, held the Plaintiff entitled for being allowed to incorporate the amendments as contained in the schedule. It is this order which is impugned in the instant Petition.::: Downloaded on - 09/06/2013 18:03:22 :::
6 wp-1216.11.sxw 4 Heard the learned counsel for the parties.
5 The learned counsel appearing for the Petitioner would contend that in terms of the law laid down by the Apex Court in the case of Shiv Gopal Sah Alias Shiv Gopal Sahu reported in (2007) 14 SCC 120 that unless satisfactory explanation is given by the Plaintiff, the amendment could not be allowed. The learned counsel has drawn my attention to Para 12 of the said Judgment which is reproduced herein under :-
"12 It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by the lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application".
The learned counsel for the Petitioner would contend that in the light of the averments, which have been incorporated in the Plaint by virtue of the first amendment carried out in the year 1998, it can be said that the Plaintiff was already aware of the right created in favour of the Defendant No.5 by the ::: Downloaded on - 09/06/2013 18:03:22 ::: 7 wp-1216.11.sxw Defendant No.1, and the transfer of the property to the Defendant No.5.
Hence the Application filed in the year 2009 seeking the relief in respect of the conveyance dated 9/7/2007 when the Plaintiff was aware of the transaction of 1997, is belated. The learned counsel for the Petitioner would contend that the application for amendment has been moved to get over the admissions which have come in the cross examination of the PW 1 in respect of the description of the property.
6Per contra, it is contended by the learned Senior Counsel Shri Sakhare appearing for the Respondent No.1 i.e. the original Plaintiff that though the Plaintiff was aware of the description of the property as Survey No. 41 when the Defendant No.1 has filed his written statement in the year 1997, for the delay caused in moving the amendment application the Defendant No.5 has been adequately compensated by payment of costs of Rs.3,000/- . In so far as the amendment sought by way of incorporating a prayer in respect of the conveyance is concerned, the learned Senior Counsel would contend that the said conveyance dated 9/7/2007 came to the knowledge of the Plaintiff only after the Defendant No.5 has filed its written statement in the year 2007, and therefore, the amendment sought cannot be said to be grossly belated. The learned senior counsel lastly contended that no prejudice is likely to be caused to the Defendant No.5 if the amendments are incorporated.
::: Downloaded on - 09/06/2013 18:03:22 :::8 wp-1216.11.sxw 7 I have heard the learned counsel for the parties and I have given my anxious consideration to the contentions urged by the learned counsel for the parties. In my view, the trial Court has grossly erred in allowing the said amendment application. The trial Court has wrongly applied the principle of dominus litus whilst considering the application for amendment. The said principle is applicable in the case of impleadment of the parties and would not be applicable in the case of incorporation of pleadings. The settled position in law as can be seen from the judgment of the Apex Court in the case of Shiv Gopal Sah (Supra) is that it is only for just and good reasons that the delay, if any, in moving the amendment application can be considered and the amendment application can be allowed. In the instant case, I do not find any reason worth the name for the delay considering the averments which were already on record in the year 1998. It is required to be noted that the plaint was amended initially in the year 1998 by virtue of which amendment Para 15A was incorporated which has been adverted to herein above. The Plaintiff, as can be seen from the averments made in the said Para 15A, was aware of the transaction between the Defendant No.1 and Defendant No.5, and in fact has specifically averred that the transfer of the property by the Defendant No.1 in favour of the Defendant No.5 would not be binding upon him. However, in spite of making the said averment, the Plaintiff had not moved any application for incorporating a consequential prayer to the said amendment. The ground that the Plaintiff became aware of the conveyance dated 09/07/2007 only after the written statement has been filed by the Defendant No.5 can only be said to ::: Downloaded on - 09/06/2013 18:03:22 ::: 9 wp-1216.11.sxw be a ground to get over the huge delay in moving the amendment application.
The Deed of Conveyance in favour of the Defendant No.5 can only be said to be consequential to the Agreement of Sale entered into between the Defendant No.1 and the Defendant No.5 in the year 1997.
8 In so far as incorporation of the description of the property is concerned, it is required to be noted that the said incorporation has been sought on the basis of the written statement that was filed by the Defendant No.1 in the year 1997. There are no reasons mentioned in the application as to why the said application for amendment was not moved immediately after 1997. In terms of the law laid down by the Apex Court only if the reasons for the delay are found to be satisfactory that the amendment application can be allowed. Imposition of costs cannot substitute the obligation of the party seeking the amendment to satisfactory explain the delay for seeking the amendment at a belated stage.
9 Another aspect to be considered is that the documents in question i.e. the Agreements admittedly refer to the suit property as Survey Nos.141/1 and 141/3, and therefore, unless the said documents are corrected, it is questionable whether the Plaintiff would be entitled to seek the amendment in so far as description of the suit property is concerned.
10 In my view, therefore, the impugned order passed by the trial ::: Downloaded on - 09/06/2013 18:03:22 ::: 10 wp-1216.11.sxw Court allowing the amendment application for the reasons mentioned therein is unsustainable and is required to be quashed and set aside, and is accordingly quashed and set aside. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. Needless to say that the suit would be tried on its own merits and in accordance with law uninfluenced by the observations made in the instant order.
[R.M.SAVANT, J] ::: Downloaded on - 09/06/2013 18:03:22 :::