1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.58 OF 2007 IN SUIT NO.948 OF 2005 Covered Wires Limited ..Plaintiff V/s. Kishore Lachmandas Raheja & ors ..Defendants And Nandlal Kisindas Rohira & ors ..Respondents Mr.Tushar Garodia i/b.Mr.Gaurang Mehta, Advocate, for the plaintiff Mr.Bharat Zaveri,Advocate, for the defendant No.1 Mr.K.A.Sampat, Advocate, for the respondent No.1 Mr.Rajesh Shah a/w.Ms.Poonam Bhatia, Advocate, for the defendant No.3 CORAM : R.M.SAVANT, J. DATE : 23RD OCTOBER, 2008 P.C. . By the above Chamber Summons, the applicant/plaintiff seeks amendment of the plaint in terms of the Schedule annexed to the Chamber Summons. The said amendment is sought on the ground that the developments which have come to the knowledge of 2 the applicant after filing of the suit are sought to be incorporated in the plaint. 2. The above suit has been filed inter alia for a decree against the defendant Nos.1 and 2 to pay an amount of Rs.92,005/- along with interest on the principal sum of Rs.72,000/- at the rate of 18% per annum and by way of prayer clause (b) for directing the defendant Nos.1 and 2 to pay the future quarterly rent of Rs.6,000/- due and payable under the said Agreement dated 31st January, 1979. By the above Chamber Summons, the suit is sought to be amended so as to incorporate a challenge to the sub-lease dated 28th June, 1982 and deed of assignment dated 25th April, 1994 executed by the Chief Promotor of the society concerned in favour of the defendant No.3 society. 3. On behalf of the defendant No.3 and the respondent, an affidavit-in-reply to the Chamber Summons has been filed whereby the amendments are sought to be opposed on the ground that if the amendments are allowed, a totally a new case would be introduced in 3 the plaint which is impermissible as also on the ground that the challenge to the said two documents is also time barred. 4. I have heard the learned counsel for the parties. On behalf of the applicant/plaintiff it is sought to be submitted that only at the time of the hearing of the Notice of Motion filed by the plaintiff in the year 2006 that the plaintiff became aware of the said documents in respect of which a challenge is now sought to be raised in the suit. It is further submitted that the amendments do not make out a new case. The learned counsel relied upon the Judgment of the Apex Court reported in the matter of RAGU THILAK D. JOHN VS. S. RAYAPPAN & OTHERS reported in 2001(1) SCALE 354 in support of his submissions. On behalf of the defendants and the respondent, the application for amendment is opposed on the ground that the case of the applicant that by way of amendment only facts which came to the knowledge of the applicant subsequently are sought to be introduced in the plaint cannot be accepted, in the teeth of the documents which are already on record. It is submitted on 4 behalf of the defendants and respondent that in so far as sub-lease is concerned, in the year 2000 vide a letter dated 4th December, 2000 (annexed as Exh.C to the plaint) the said facts which are now sought to be introduced have already been communicated to the plaintiffs. The plaintiffs have kept quiet right from the year 2000 to the present Chamber Summons being filed on 15th January, 2007. It is further submitted that if the amendment is allowed then it would amount to an admission in favour of the defendant No.3 being taken away in as much the plaint, as filed proceeded on the basis that there was a lease in favour of the defendant No.3 whereas by way of amendment which is sought to be incorporated the challenge is raised to the said lease on the ground that the applicant had never entered into it; and therefore according to the defendants and respondent the applicant cannot now be allowed to resile from the statements made in the plaint. 5. Having considered the rival contentions, in my view, there is considerable merit in the submission of the learned counsel appearing for the defendants and the respondent. If the amendments are 5 permitted apart from the fact that a totally new case would be introduced. It would also amount to taking away an admission which is in favour of the defendants. The issue of limitation would also be relevant as the averments made in the plaint ex-facie demonstrate that the challenge to the said documents (supra) would be hopelessly time barred. 6. It would also be pertinent to note that the applicant was aware of the said documents as can be seen from Exh.C to the plaint as well as the averments made in the plaint. Inspite of the same the reliefs claimed in the suit were as regards the recovery of the lease rent. It is, therefore, very difficult to digest that the applicant became aware of the said documents at the time of the hearing of the Notice of Motion in the year 2006. Obviously, the applicant now wants to resile from his earlier case of recovery of lease rent. In my view, the flip/flops on behalf of the applicant cannot be permitted. 7. Reliance placed by the learned counsel for the applicant on the Judgment of the Apex Court reported in 2001(1) SCALE 354 in 6 my view, is misplaced in the facts and circumstances of the present case. In the said case before the Apex Court the suit filed was for restraining the defendants from demolishing the compound wall, during the pendency of the suit, the said compound wall came to be demolished resulting in the plaintiffs making an application for amendment. It is in the said context that the Apex Court has made its observations as regards the approach to be followed by the Court in the matter of grant of an application for amendment. 8. In my view, considering the facts of the instant case, the applicant would not be entitled to amend the plaint in terms of the Schedule to the Chamber Summons. The Chamber Summons is accordingly rejected. (R.M.SAVANT, J.)