Dilip Dwarkadas Udeshi And ORS v. M/S. Elite Associates

ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 8700 OF 2021 DILIP DWARKADAS UDESHI AND ORS ....PETITIONERS V/s.

M/S. ELITE ASSOCIATES .....RESPONDENT Mr. Ferzana Behramkamdin a/w Bharti Bhansali i/b FZB Associates for the Petitioner CORAM :

NITIN W. SAMBRE, J.

DATE:

JANUARY 31, 2022.

P.C.:

1) Heard. Present petition is by the Defendants to a Suit for declaration and permanent injunction. Respondent-Plaintiff took out chamber summons seeking amendment whereby insertion of the claim for mens profit and also addition/replacement of trustees came to be allowed vide impugned order dated 16/11/2021 passed by City Civil and Sessions Court, Greater Bombay.

2) Counsel for the Petitioner-Defendant would urge that by way of permitting the amendment, the Court has permitted the Plaintiff to 1/3

bring time barred claim of mens profit within limitation. She would further urge that Court below has failed to appreciate the very principle of Order II Rule 2 of Code of Civil Procedure, 1908 as when the Suit was initiated, Respondent-Plaintiff has chosen not to come out with a prayer for recovery of mens profit. As such, by relying on the Judgment of the Apex Court in the matter of Shiv Kumar Sharma V/s. Santosh Kumari1 and the Judgment of this Court in the matter of Avinash Karnik V/s. Ajit Karnik and Others2 it is claimed that amendment is granted de-hors the provisions of law. 3) I have appreciated contentions raised in the light of law laid down by the Courts in the aforesaid Judgments and also nature of amendment granted.

4) In my opinion, Respondent-Plaintiff had every right to claim mens profit provided such claim is made within limitation. To that extent claim of Respondent-Plaintiff seeking inquiry in the matter of mens profit and recovery of the same is quite justified. 5) With an observation that the Trial Court while deciding the Suit claim will be sensitive to the issue of limitation as to the period (2007) 8 Supreme Court Cases 600 2019 SCC OnLine Bom 1057 2/3

within which the plea for inquiry and recovery of mens profit should be entertained, I hardly see any reason which warrants interference in extraordinary jurisdiction.

6) Petition as such fails, stands dismissed.

[NITIN W. SAMBRE, J.] IRESH SIDDHARAM MASHAL by IRESH SIDDHARAM MASHAL Date:

2022.01.31 16:39:58 +0530 3/3