1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS 1494 OF 2009 IN SUIT NO. 2361 OF 1994 Anant Chimanlal Bhatt ....Plaintiff V/s Digant Chimanlal Bhatt and others ..... Defendants. ---- Mr. Rajiv Matkar for plaintiff. Mr. Sanjay Jain for defendant No.3. Mr. H.V. Chande for defendant No.6. Mr. M.M. Vashi for defendant Nos. 7 and 8. ---- CORAM: V.M. KANADE, J. DATE : 12th October, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of plaintiff and the learned counsel appearing on behalf of defendants. 2. This Chamber Summons is taken out by plaintiff 2 seeking amendment of the plaint as per the schedule annexed to the Chamber Summons. Counsel appearing on behalf of plaintiff submitted that this application for amendment has been made firstly because certain particulars are not mentioned in the plaint and the reason why the family arrangement was arrived at is not mentioned and, therefore, it is necessary to give the reason why parties had agreed on the family arrangement. He further submitted that details regarding share of the plaintiff are not mentioned in the plaint and, therefore, additional averments are sought to be made in the plaint so that in the event the relief claimed by the plaintiff for execution of the family arrangement is declined by this Court, the share of the plaintiff could be calculated in a particular manner. He submitted that this has become necessary on account of various subsequent events which had taken place after 2005 and, therefore, the loss which is caused to the plaintiff on account of these subsequent developments also has to to be incorporated in the plaint. He invited my attention to the draft amendment which is annexed to the Chamber Summons. 3. Mr. Jain, the learned Counsel appearing on behalf of defendant No.3 and Mr. Mukesh Vashi, the learned Counsel appearing on behalf of defendant Nos. 7 and 8 pointed out that in 3 the past several applications for amendment were made and were granted. It is submitted that atleast on 4 to 5 occasions, plaintiff has amended the plaint and the prayer clause in the plaint and basic averments have been made in the plaint in respect of the family arrangement deed as also for partition. It is further submitted that the amendments which are sought to be made are barred by law of limitation and the entire nature of the suit is sought to be changed by these amendments. It is further submitted that if the amendments are allowed, the cause of action also would be altered by these amendments. It is further submitted that the suit was expedited on two occasions; once by the learned single judge and other by the Division Bench in appeal and the Chamber Summons is filed only to delay the proceedings. It is further submitted that whenever the matter was placed for framing of issues, either application for amendment was filed or a new application was made. 4. I have heard the Counsel for plaintiff and defendants at length. Prayer clause (a) of the suit is for partition of the suit properties and in the said prayer plaintiff has claimed 1/7 th share in both the properties viz Plot No.9A and Plot No.9B. Prayer clause (e) is for execution of the family arrangement deed. In the family arrangement deed what was allegedly agreed was that 4 out of the two plots, one plot would be given to plaintiff and the other plot would be given to defendants. Thereafter, again, the application for amendment of prayer clause was made and the prayer clauses e-1 to e-12 were added. Even on earlier occasions, applications for amendment were allowed and the prayer clause has been amended from time to time. In my view, it is rightly submitted by Mr. Jain the learned Counsel appearing on behalf of defendant No.3 that most of the prayers which are on record covers the prayers which are now sought to be added by this amendment. Since basic facts have been averred in the plaint, it is not necessary to bring on record the material particulars which are now sought to be added by this Chamber Summons. Counsel for plaintiff has relied upon the judgment in the case of Pankaja and another v. Yellappa (D) by L.Rs. And others reported in AIR 2004 SC 4102. In the said judgment, the Apex Court has held that though there is substantial delay in filing application for amendment, the said application can be allowed and even if the relief is barred by limitation, it can be allowed in appropriate cases if that sub-serves the cause of justice and avoids the further litigation. There cannot be any doubt about the ratio laid down by the Supreme Court in the said judgment. However, the question whether the application for amendment should be allowed or not would depend on facts and 5 circumstances of each case. In my view, taking into consideration the fact that this application for amendment has been made almost after 15 years after the suit was filed and when the suit is now ripe for hearing if this application is allowed, there will be only further delay in disposal of the suit as the defendants will have to again amend their Written Statement. The material particulars have already been pleaded in the plaint and, therefore, it is not necessary, in my view, to give particulars which are mentioned in the application for amendment. 5. Counsel appearing on behalf of plaintiff submits that the plaintiff does not press that portion of the paragraph in the schedule to the Chamber Summons which challenges the Will, for amendment. 6. Chamber Summons is accordingly dismissed. (V.M. KANADE, J.)