F.G.P.Ltd. v. Mr.Saleh Hooseini Doctor And ANR.

1/5 vat

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) No. 715 OF 2014 IN CHAMBER SUMMONS (L) No.162 OF 2014 IN SUIT No.3505 OF 1991 WITH NOTICE OF MOTION No. 39 OF 2015 IN APPEAL (L) No. 715 OF 2014 IN CHAMBER SUMMONS (L) No. 162 OF 2014 IN SUIT No. 3505 OF 1991 F.G.P.Ltd.

....Appellants (Org. Plaintiffs) Vs.

Mr.Saleh Hooseini Doctor and Anr.

....Respondents (Org. Defendants) ****** Mr.Sharon Pinto for Appellants Mr.D.J. Khambatta, Senior Counsel a/w. Mr.Nimay Dave i/b. Bachubhai Munim & Co. for Respondents ****** CORAM : V. M. KANADE & REVATI MOHITE DERE, JJ.

DATE : FEBRUARY 22, 2016 P.C. :

1.

Heard the learned counsel appearing on behalf of the Appellants and the Respondents.

2.

The Appellants, who are the Original Plaintiffs, have filed this

2/5 appeal, being aggrieved by an order passed by the Learned Single Judge, who was pleased to dismiss their chamber summons for amendment of the plaint.

3.

Brief facts which are relevant for the purpose of deciding the appeal are as under:

4.

The Plaintiffs had filed a suit for specific performance of a contract executed sometime on or about 20th July, 1981, seeking to resile from the admission made in paragraph 2 of the plaint. It is alleged that the Plaintiffs were monthly tenants and had deposited an amount of Rs.5 lacs towards security deposit. It is alleged in the plaint that thereafter there was an agreement to purchase the property. The suit was filed in 1991. 4.

Thereafter, an application for amendment of the suit was filed in 2004. The said application for amendment was dismissed by the Learned Single Judge on various grounds and, more particularly, on the ground that the Plaintiffs were trying to introduce a new case and was also seeking to withdraw the admission made by him in paragraph 2 of the plaint. The appeal, which was filed by the Appellants against the said order of the Learned Single Judge, was dismissed by the Division Bench on 17th November, 2005 by a reasoned order. Civil appeal filed by the Appellants in the Apex Court was also dismissed. Almost 10 years thereafter and 23 years after the suit was filed, the date on which the

3/5 issues were to be framed, a fresh application by way of chamber summons was filed by the Plaintiffs for amendment of their plaint. The Learned Single Judge by a well reasoned order had dismissed the said Chamber Summons.

5.

The learned counsel for the Appellants has submitted that the facts, which are averred in the draft amendment, were brought to their notice recently, since after the Thane Factory was closed, certain old records were traced out by the Appellants. It is submitted that new Attorney was appointed and he came to know about these documents, which were traced and, therefore, the Chamber Summons was filed in 2014. It is submitted that these documents are necessary and material facts which need to be incorporated in the plaint to understand the circumstances under which the aforesaid amendments need to be carried out. The learned counsel for the Appellants/Plaintiffs has taken us through the draft amendment and has tried to justify the delay caused in filing the chamber summons. It is submitted that these averments do not change the nature of the case.

6.

In our view, it is difficult to accept the submissions made by the learned counsel for the Appellants. Firstly, there is a gross delay in taking out the chamber summons for amendment. Chamber Summons for amendment in the plaint is filed after 23 years, after the suit was filed.

4/5 The Appellants have given the same reason for the discovery of the documents in the first application made for amendment which was filed in 2004. In the second application also, there is an averment that these documents were traced after the closure of the Thane Factory and during the process of shifting. It is difficult to believe that the Plaintiffs did not trace those documents at that time. In our view, the reasons given for filing the chamber summons are after thought and an attempt is made to resile from the admission given in paragraph 2 of the suit and is seeking to substitute by setting up an entirely new case. Second chamber summons for amendment has been filed when the issues were to be framed. It is obvious that after having realized the Plaintiffs that they did not find any chance in succeeding in the suit on the basis of averments made in the plaint, now an attempt is made to overcome an admission which is found in the plaint.

7.

The Apex Court by its judgment in the case of Revajeetu Buildes and Developers Vs. Narayanaswamy and Sons and Ors. [(2009) 10 Supreme Court Cases 82] has deprecated the process of belatedly filing the applications for amendments which is only to protract the proceedings and has observed that in such cases, costs should be imposed on the party for filing such applications for amendment at the belated stage. The Apex Court has also observed that it is not open for the parties to file an application for amendment; firstly, to overcome an

5/5 admission which is given in the earlier pleadings or which constitutionally or fundamentally changes the nature and character of the case and which is likely to cause gross prejudice to the Plaintiff or Defendant. 8.

All the documents, which are now sought to be brought on record, are of the year 1981 i.e. almost 10 years prior to the date of filing of the suit. The Learned Single Judge has given cogent reasons for rejecting the Chamber Summons for amendment of the plaint. We agree with the observations made by the Learned Single Judge in paragraph 12. Surprisingly, paragraph 12 at page 27 is not annexed to our copy as well as the copy which is served on the Respondents, which contains the strictures, which are passed by the Learned Single Judge on the conduct of the Plaintiffs.

Hence, no case is made out for interfering with the impugned order passed by the Learned Single Judge. Appeal, therefore, is dismissed.

REVATI MOHITE DERE, J.

V.M. KANADE, J.