((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1444 OF 2008 IN SUIT NO.3099 OF 1999 S.S.Jhuria Plaintiff versus State of Maharashtra & others Defendants WITH CHAMBER SUMMONS NO.1116 OF 2008 IN SUIT NO.3099 OF 1999 Shantidevi Sohanlal Jhuria Plaintiff versus State of Maharashtra and others Defendants K.H.Mody i/by Bhai Kanga & Girdharilal for plaintiff. Ms.Iman Calcuttawala, AGP for defendants 1 and 2. R.Y.Shirsikar a/w Ms.Smita Basutkar for BMC. Pradeep Sancheti i/by Zohair & Co. for defendant no.9. Kamal Bulchandani a/w Mahendra Rathod for defendant no.10. CORAM : A.S.OKA, J. DATE : 17th December 2008 PC : 1. The Chamber Summons No.1144 of 2008 has been taken out by the plaintiff for amendment of the plaint. The other Chamber Summons No.1116 of 2008 has been taken out by the 9th defendant praying for an amendment/striking out ((-2-)) certain issues. 2. With a view to appreciate the submissions made by the learned counsel for the parties it will necessary to refer the facts of the case in brief. The present suit has been filed by the plaintiff for a declaration that the writing and/or affidavit dated 13th April 1982 (Exhibit-N to the plaint) is null and void, illegal and is of no legal effect. A declaration is claimed that the 9th and 10th defendants do not acquire and did not acquire any right, title or interest in the suit property by virtue of writing and/or affidavit at Exhibit-N to the plaint. There are various other reliefs claimed in the suit. The case of the plaintiff is that on 1st October 1951 his grandfather had settled upon trust in a sum of Rs.2.00 lakhs for the benefit of the family members of his son R.K.Poddar. The case of the plaintiff is that the said K.J.Poddar appointed one Ajay Singh as additional trustee of the trust declared on 1st April 1951. On 28th February 1956 the said additional trustee entered into an agreement for acquiring leasehold rights with one Deviprasad Khandelwal in respect of Plot No.6, Worli Estate, Scheme ((-3-)) No.52, Abdul Gafar Khan Road, Worli, Mumbai for a consideration of Rs.25,000/-. On 14th July 1958, 9th defendant in his capacity as constituted attorney of R.K.Poddar let out the ground floor of the suit property to Maharani Padminibai Kunverbai at the monthly consideration of Rs.700/-. It is the case of the plaintiff that on 17th April 1960 the said R.K.Poddar as Licensor had let out the ground floor of the suit property to a school for monthly consideration of Rs.700/-. On 19th February 1964, an indenture of lease has been executed by and between the Bombay Municipal Corporation as lessors and plaintiffs, 9th and 10th defendants and the said Ajay Singh. It is stated that the plaintiffs had let out parts of the second floor in 1964-65 and in the year 1968. Reference has been made to the proceedings of the suit filed by the 9th defendant and in particular Suit No.345 of 1969 filed by the 9th defendant claiming sole ownership in respect of the suit property. It is stated that on 1st April 1982, the 9th defendant withdrew the said suit with liberty to file a fresh suit by impleading the Charity Commissioner as party defendant. The case of the defendant is that 9th and 10th defendants ((-4-)) had declined to act as trustees of the property of the trust and contrary to their earlier stand of having denied execution of lease dated 19th February 1964 executed by the Bombay Municipal Corporation, on 13th April 1982, 9th and 10th defendants affirmed an affidavit before the Sub Registrar of Assurances expressing their desire to admit the execution of the indenture of lease dated 19th February 1964. Reference has been made in the suit to the other litigations between the parties. The case of the plaintiff in short is that the first to 8th defendants cannot recognize the 9th and 10th defendants as co-lessees of the suit property. The suit was contested by the defendants by filing written statements. Issues were framed by this Court. 3. The issues which are relevant for consideration of the Chamber Summons are issue nos.2 to 8 and 12 which reads thus :- "2. Whether the defendants nos.9 and 10 are entitled to claim any rights in the suit property in view of withdrawal of suit nos.345 of 1969, 1809 of 1982 and 3244 of 1984, 3245 of 1984 and 261 of 1992, filed by defendant no.9 in this Court as Plaintiff? 3. Whether the defendant Nos.9 and 10 are entitled to claim any rights or ((-5-)) interest in the suit property on account of refusing to admit execution of the Indenture of Lease dated 19.02.1964 on the ground that Defendant No.9 did not execute the said Indenture of Lease dated 19.02.1964 on the ground that Defendant No.9 did not execute the said Indenture of Lease and that the signature of defendant no.10 was made under misrepresentation? 4. Whether the defendant No.9 and 10 became entitled to any right, title or interest in the suit property by reason of Deed of Confirmation dated 13.04.1982 executed and registered by them after the registration of the said indenture of lease qua them was refused by the Registrar of Assurance on 26th October 1964? 5. Whether Defendant Nos.9 and 10 are entitled to claim any right, title and interest in the suit property on account of their adverse claims made in suit no.345 of 1969 filed by Defendant No.9 as Plaintiff in this Court as absolute owner of the suit property? 6. Whether Defendant Nos.9 and 10 are entitled to any right, title and interest in the suit property as claimed under the indenture of lease for want of any consideration?" 7. Whether Defendant nos.9 and 10 have a right to claim as co-lessees as tenants in common by reason of defendant no.9 admitting the suit property as a trust property? 8. Whether defendant nos.9 and 10 are entitled to claim any benefits as beneficiaries of the trust? 12. Whether defendants nos.9 and 10 prove that the alterations carried out by them in the suit premises are in anyway legal and are not liable to be removed or demolished?" ((-6-)) The prayer in the Chamber Summons No.1116 of 2008 taken out by the 9th defendant is that the issue no.2 does not arise out of the pleadings. Further prayer is that issue nos.3,4,5,6 and 12 have not been correctly framed and in fact the burden ought to have been shifted on the plaintiff. The further prayer is that issue no.7 does not arise at all. The same is the case in respect of issue no.8. 4. After the said Chamber Summons was taken out, the plaintiff has taken out Chamber Summons No.1444 of 2008 for amendment of the plaint. He has sought permission to incorporate three additional paragraphs being paragraphs 14(A) to 14(C) in the plaint. By paragraph 14(A), the plaintiff wants to contend that 9th and 10th defendants are not entitled to claim the suit property as lessees adverse to the trust. By paragraph 14(B) the plaintiff wants to contend that the defendants 9 and 10 have forfeited all their rights, benefits under the said trust as beneficiaries on account of their adverse and prejudicial claims in respect of the suit property knowing fully well and having admitted that the suit property belongs to the trust. Paragraph 14(C) contains an ((-7-)) averment that in view of withdrawal of various suits by the 9th defendant, he is not entitled to claim any right in respect of the suit property. The contention sought to be raised is that the claim made by 9th and 10th defendants in respect of the property is barred by principles of resjudicata or principles analogous thereto. It is contended that the said defendants are precluded from claiming the said rights as has been claimed in the suit. 5. In the affidavit in support of the Chamber Summons taken out by the plaintiffs it is contended that an occasion for taking out the Chamber Summons arose when the other Chamber Summons was taken out by the 9th defendant for amendment/striking out certain issues. 6. The 9th defendant filed a reply to the Chamber Summons taken out by the plaintiff. In the said reply he referred to Suit No.3433 of 1997 and Suit No.4720 of 1998 filed by the present plaintiff, original second plaintiff and 11th defendant. It is pointed out that Suit No.3433 of 1997 was filed for a declaration and for permanent injunction restraining the 9th and 10th defendants from ((-8-)) claiming as co-lessees under the indenture of lease dated 19th February 1964 on the ground that the document dated 13th April 1982 was null and void. It is pointed out that the said suit was dismissed on the ground of bar of limitation but the same has been restored in appeal. It is pointed out that Suit No.4720 of 1998 was filed for a declaration that 9th and 10th defendants were trespassers in the said property. It is stated that the plaint in the said suit was rejected on the ground of bar of limitation. Reference has been made to various prayers in the said suits filed by the plaintiffs and the issues framed in the said suit. It is prayed that there is no merit in the Chamber Summons and the same deserves to be dismissed. 7. A separate affidavit in reply filed by the 10th defendant opposing the amendment proposed by the Chamber Summons. 8. The learned counsel appearing for the plaintiff submitted that the proposed amendment is not inconsistent with the averments made in the suit as originally filed. The submission is that the defence of the 9th and 10th ((-9-)) defendants based on judgements in the earlier suits filed by the plaintiffs and the 11th defendant needs to be considered at the time of final hearing of the suit. He submitted that if the amendment is allowed, the contentions raised by the said defendants by way of opposition to Chamber Summons can be raised by way of filing additional written statement. He, therefore, submitted that the amendment deserves to be allowed. He submitted that if the amendment is allowed, there will be no prejudice to any of the defendants. 9. The learned counsel appearing for the 9th defendant has taken me through the averments made in the plaint. He invited my attention to the averments made in the plaints of Suit No.4720 of 1998 and Suit No.3433 of 1997. He also invited my attention to the judgement and order dated 21st June 2003 passed by this Court in Suit No.4720 of 1998 by which the plaint was rejected on the ground of bar of limitation. He submitted that apart from the fact that the Chamber Summons has been taken out belatedly only as a counter blast to the Chamber Summons taken out by the 9th defendant, the contentions raised in paragraphs 14(A) to 14(C) cannot be ((-10-)) allowed to be raised as the same are subject matter of two other suits referred to above. Inviting my attention to the prayers made in the Chamber Summons taken out by the 9th defendant, he submitted that the issue nos.2,7 and 8 will have to be deleted and the other issues referred to in prayers in the Chamber Summons will have to be recasted. 10. The learned counsel appearing for the 10th defendant while adopting the submissions made by the counsel for 9th defendant submitted that the Chamber Summons will have to be rejected on the ground that the same is hit by proviso of Rule 17 of Order VI of Code of Civil Procedure, 1908. 11. I have carefully considered the submissions. For considering the Chamber Summons taken out by the plaintiff, it will be necessary to refer to the plaint in Suit No.4720 of 1998 filed by the original second plaintiff and the present plaintiff. As pointed out earlier, the said suit has been disposed of by passing an order of rejection on 21st June 2002. The present 9th and 10th defendants were party defendants to the said ((-11-)) suit. The prayer in the said suit is for declaration that the defendants in the said suit (9th and 10th defendant herein) have ceased to be the beneficiaries under the said declaration of trust dated 1st April 1951 and have no right, title or interest whatsoever in the trust property. Thus, the contention raised in the said suit is that 9th and 10th defendants in the present suit are not entitled to claim any benefits under the said trust as beneficiaries. As pointed out earlier, the plaint in the said suit stands rejected. The order rejecting the plaint is a decree within the meaning of Section 2 of Code of Civil Procedure, 1908. Paragraph 14(B) sought to be added by the Chamber Summons reads thus :- "14B. The Plaintiff states that Defendant Nos.9 and 10 have forfeited all their rights, benefits under the said Trust as beneficiaries on account of their adverse and prejudicial claims in respect of the suit property knowing fully well and having admitted that the suit property belongs to the Trust." Considering the prayer made in the said suit, I find that the contentions sought to be incorporated by paragraph 14(B) cannot be allowed to be incorporated by way of an amendment to the present suit. ((-12-)) 12. As far as paragraph 14(A) sought to be added is concerned, the case sought to be made out by incorporating an averment that 9th and 10th defendants are not entitled to claim the suit property as lessees. The said contention which is sought to be raised is not inconsistent with the averments made in the plaint and the substantive relief sought by virtue of prayer clause (a). The contention of the plaintiff is that earlier a stand was taken by the 9th and 10th defendants that they had not executed the indenture of lease dated 19th February 1964 and contrary to the earlier stand a declaration dated 13th April 1982 has been executed by 9th and 10th defendants. Therefore, the amendment to the extent of paragraph 14(A) will have to be allowed. 13. As far as paragraph 14(C) is concerned, the criticism offered by the counsel for 9th and 10th defendants is that the contentions raised on the basis of the withdrawal of the suits and proceedings by the 9th defendant has already been raised in Suit No.3433 of 1997. A submission was made that in any case the withdrawal of the said suits cannot operate as ((-13-)) res judicata. At this stage, the merits of the amendment cannot be gone into. In substance, what is sought to be contended by paragraph 14(C) as reflected from last sentence is that the defendants 9 and 10 are precluded from claiming the rights which have been claimed by them in the said suits which are withdrawn. In my view, the plaintiff will have to be permitted to incorporate the said paragraph 14(C) in the plaint. 14. Even if the amendment is allowed by allowing incorporation of paragraphs 14A and 14C, it is obvious that all contentions of the parties including contention of bar of limitation always remain open and it will be always open for the defendants to raise all permissible contentions by filing additional written statement. 15. That takes me to the other Chamber Summons taken out by the 9th defendant. 16. As the plaintiff has been allowed to amend the plaint by adding paragraphs 14A and 14C, issue nos.2 and 7 cannot be deleted. However, as amendment of insertion of paragraph 14B is ((-14-)) not allowed, issue no.8 will not arise from the pleadings and the same will have to be deleted. 17. After having considered the averments made in the plaint and written statement, issue nos.2,3,4,5,6 and 7 will have to be recasted as burden to prove the said issues will be obviously on plaintiffs. The issue nos.10, 11 and 12 will have to be modified as indicated in the operative part of this order. To the aforesaid extent the Chamber Summons will have to be made absolute. 18. Hence, I pass following order :- (a) Chamber Summons No.1444 of 2008 is partly made absolute in terms of prayer clause (a) to the extent of permitting addition of paragraphs 14A and 14C. The prayer in the Chamber Summons insofar as it relates to paragraph 14B stands dismissed; (b) The amendment to be carried out within six weeks from today. Amended copy of the plaint shall be served to the defendants within a period of two weeks from the date on which the amendment is carried out; ((-15-)) (c) Additional written statement, if any, tobe filed within a period of six weeks from the date on which the amended copy of plaint is served to the defendants; (d) Chamber Summons No.1116 of 2008 is partly allowed as under :- (i) Issue no.8 stands deleted. As far as issue nos.3,4,5,6 and 7 are concerned, the same are modified as burden to prove the said issues is on the plaintiff. The recasted issue nos.2 to 7 read thus :- Issue No.2 : Whether the plaintiffs proves that the defendant nos.9 and 10 are not entitled to claim any right in the suit property in view of withdrawal of Suit Nos.345 of 1989, 1809 of 1982, 3244 of 1984, 3245 of 1984 and 261 of 1992 filed by the 9th defendant as plaintiff? Issue No.3 : Whether the plaintiff proves that the defendant nos.9 and 10 are disentitled to claim any rights or ((-16-)) interest in the suit property on account of refusing to admit the execution of the Indenture of Lease dated 19th February 1964? Issue No.4 : Whether the plaintiff proves that the defendant nos.9 and 10 are not entitled to any right, title or interest in the suit property even by reason of the Deed of Confirmation dated 13th April 1982 executed and registered by them? Issue No.5 : Whether the plaintiff proves that the defendant nos.9 and 10 are disentitled to any right, title and interest in the suit property on account of their adverse claims made in Suit No.345 of 1969 filed by the defendant no.9 as plaintiff in this Court as absolute owner of the suit property? Issue No.6 : Whether the plaintiff proves that the defendant nos.9 and 10 are disentitled to any right, title and interest in the suit property as claimed under the indenture of lease for want of ((-17-)) consideration? Issue No.7 : Whether the plaintiff proves that the defendant nos.9 and 10 are not entitled to claim as co-lessees as tenants in common in view of the admission of the defendant no.9 that the suit property was a trust property? (ii) The prayer made in the Chamber Summons for striking out the issue nos.2 and 7 is rejected. (iii). Issue no.10 is recasted by framing following issue :- "10(a) : Whether the plaintiff proves that the defendants 1 to 10 have made slander of title of the plaintiffs; 10(b) : If the finding on the issue no.10(a) is in the affirmative, what order and decree against first to tenth defendants for payment of damages?" (iv). Issue no.11 is recasted as under :- "11. Whether the defendants 9 and 10 are ((-18-)) liable to pay any amount as claimed by the plaintiff in paragraphs 24 and 25 of the plaint? (v). Issue no.12 is recasted as under :- "12(a). Whether the plaintiff proves that 9th and 10th defendants have carried out alterations to the suit premises as alleged by the plaintiff? 12(b) If the answer to the aforesaid issue is in affirmative, whether 9th and 10th defendants prove that the alterations carried out by them are legal and are not liable to be removed or demolished?" (e) There will be no order as to costs. (A.S.OKA, J.)