1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.625 of 2010 IN Suit No.3301 of 1996 Minakshi Mahendra Pitroda .. .. Plaintiff v/s. Kusumben Devchand Rathod & ors. .. Defendants Deepak Shantilal Rathod. .. .. Proposed Respondent Mr.R.N. Bhagttjee for Plff. Mr.D.D. Madon, Sr.Advocate with Mr.Zubin Behramkamdin with Mr.Dhiren H. Shah and Mr.P.M. Bajpai i/by M/s.Vimla & Co. for Deft.No.10A. Mr.Ashish Kamat i/by M/s.Shiralkar & Co. for Deft.Nos.1 to 6. Mr.Rohan Cama for Respondent. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 2nd July, 2010 Date of pronouncing the order : 19th July, 2010 P.C. : 1.The Plaintiff essentially requires three types of amendments under this Chamber Summons which are as follows:- (i) The Plaintiff seeks to add one Deepak Shantilal 2 Rathod as Defendant No.15. (ii)The Plaintiff essentially seeks to amend the submission relating to the entitlement claimed by the Plaintiff. (iii) The Plaintiff seeks to add the averments relating to the crystallisation of a fraud alleged to be practised upon the Plaintiff brought to the notice of the Plaintiff by virtue of several documents which are sought to be annexed to the Plaint. 2.The first amendment is in respect of addition of a witness as a party Defendant. A witness is not required to be a party to the suit. He is neither a proper nor a necessary party. He is required to be called in evidence, upon service of summons, if required. Hence, first of these amendments cannot be granted. 3.The second amendment relates to the submission of her entitlement. The Plaintiff quantified the loss suffered by the Plaintiff by a monetary evaluation. The Plaintiff s suit is for a declaration that the consent order challenged by the Plaintiff was fraudulent and for partition and further ancillary reliefs. The Plaintiff has also applied for the alternative relief 3 quantifying her share. The averment in paragraph 29 of the Plaint, which shows the Plaintiff s submission with regard to her legal right, if any, consequent upon the fraud practised upon her is Rs.1,50,00,000/-. The relief in prayer (d) is quantified at Rs.75,00,000/- towards the1/4th share of the Plaintiff. The Plaintiff has only sought the amendment of the averment in paragraph 29 of the Plaint (erroneously shown to be Para-26 of the Plaint in the Schedule to the Chamber Summons). Her submission with regard to the joint and several liability of the Defendants to the Plaintiff and Defendant No.14 quantified at Rs.1,50,00,000/- is sought to be amended to claim only their 50% share in the suit property. 4.It is contended by the Defendants that this tantamounts to withdrawal of an admission made by the Plaintiff. The Plaintiff admitted that the total liability towards the share of the plaintiff and Defendant No.14 was Rs. 1,50,00,000/- and consequently, the Plaintiff prayed for payment of Rs.75,00,000/- in prayer (d) which, by way of the amendment, would stand withdrawn as if the suit would not be capable of monetary evaluation. 5.The Defendants have relied upon a number of judgments, all of which relate to withdrawal of admission made in the Written Statement. The averments made in the Plaint 4 are either admitted or denied. The admitted averments cannot be allowed to be withdrawn as that would irretrievably prejudice the Plaintiff. This case is the reverse. 6.In the case of Panchdeo Narian Srivastava vs. Jyoti Sahay, AIR 1983 SC 462 the case of the Plaintiff as a son of a uterine brother was sought to be amended as the case of son of a brother simpliciter, by deletion of the word uterine in the plaint. The claim was to be adjudicated upon the factual relationship. The order of amendment by the trial Court was upheld as the amendment allowed to effectively adjudicate upon the dispute. 7.What is withdrawn in this case is the Plaintiff s evaluation of the relief claimed by the Plaintiff. The essential relief is the relief of partition. The monetary evaluation is the Plaintiff s share upon such partition. That monetary claim is in prayer (d) which is alternative to prayer (c) which is the prayer for partition. The Plaintiff s suit for partition remains. A part of the relief is in terms sought to be deleted. The submission relating to the joint and several liability of the Defendants to pay the Plaintiff and Defendant No.14 50% of the suit property is in terms the partition claimed by the Plaintiff under prayer (c) 5 to the Plaint. Any party may not press a particular prayer. Any party may withdraw a part of the claim. The remainder of the prayer may be granted upon the merits of the case. The Court would also be entitled to mould the relief. The Court may or may not grant the prayer ultimately remaining in the suit. The Court may itself grant the relief upon monetary evaluation if the prayer, which is otherwise not evaluated, is capable of such evaluation. 8.A partition of the suit property per se can be ordered either by metes and bounds upon the sub-division of the property or by monetary evaluation of the share of the claimant. 9.In any event, the Courts, which would do equity at all times, cannot turn Nelson s eye to the actual acts that transpired pending the suit. Though, therefore, once the amendment is allowed, the submission with regard to the joint and several liability of the Defendants would stand modified, the Plaintiff s alternative prayer would remain and even if that is also deleted the fact that the amendment was made on a given date would be writ large on the record of the case. 10.It is the case of the Defendants that the amendment is not bona fide because at the time the suit was filed 6 the suit property was undeveloped and encroached upon. The Plaintiff, therefore, evaluated her share unilaterally. Thereafter the property has been developed and encroachments have been removed. The valuation of the property has, therefore, enhanced. The Plaintiff claims her share in the property without the evaluation in monetary terms as on the date of the suit. 11.This fact would be a relevant fact to consider in evidence when the relief, if any, is required to be granted to the Plaintiff. However, a simpliciter amendment in paragraph 29 of the Plaint cannot be rejected. 12.The Defendants contend that the amendment, if allowed, would fall within the mischief of the Limitation Act. The Plaintiff has applied for the relief of partition and the alternative relief of payment of her share as evaluated by her. Both those prayers remain. A simpliciter submission with regard to what is the Plaintiff s share is not the cause of action in the Plaint. The cause of action, if any, is as set out in the Plaint and which is not altered. Hence, the bar of limitation would not be attracted merely upon the amendment. 7 13.In the case of South Konkan Distilleries & anr. vs. Prabhakar Gajanan Naik & ors., (2008) 14 SCC 632, the use of the discretion of the Court judiciously upon an arguably time-barred case has been set out in favour of granting the amendments upon facts already on record and even if the doctrine of relation back applied, it is observed that the Plaintiff would take the consequences of the bar of limitation; the Court must be expressly liberal in granting the prayer for amendment, though there is no absolute rule in that behalf. The ultimate cause of justice and avoidance of future litigation are the two sub-serving yardsticks. 14.The various factors, which are required to be considered for amendments set out in the case of Revajeetu Builders & Developers vs. Narayanaswamy & Sons & ors., 2009 DGLS (Soft.) 1184 amplify the well settled legal position. 15.A reading of the amendments as well as the aforesaid judgments, as a whole, make out the case for grant of the amendments relating to the modification of, not the prayer, but the submission in paragraph 29 of the Plaint. 16.The third amendment is necessarily to rely upon further documents to particularise the fraud alleged by 8 the Plaintiff. These documents could have been only relied upon by the Plaintiff to prove her case of fraud. It is in terms the evidence that the Plaintiff has produced to substantiate the fraud alleged by her. These amendments are not seriously disputed. These amendments are allowed much in consonance with the present day practice of setting out each aspect of the evidence in the pleadings, which need not even be. 17. Hence, the following order:- ORDER (i)The Chamber Summons is made absolute in terms of prayer (a), except the portion bracketed in red in the Schedule to the Chamber Summons. (ii) The Plaintiff shall carry out the amendments within two weeks. The Plaintiff shall also amend the copy of the Plaint served upon all the Defendants within two weeks. (iii)The Defendants shall be entitled to file a further Written Statement, if required. (iv)The Chamber Summons is disposed of accordingly. (SMT.ROSHAN DALVI, J.) 9