IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO.115 OF 2008 CHAMBER SUMMONS NO.115 OF 2008 CHAMBER SUMMONS NO.115 OF 2008 IN IN IN SUIT NO.1315 OF 1990 SUIT NO.1315 OF 1990 SUIT NO.1315 OF 1990 M/s.Harkisindas Gokaldas & Co. & Ors. ... Plaintiffs. Versus Sunil Ajitlal Shah & Ors. .. Defendants. And Rupshi Pethabhai Shah .. Respondent. Mr.K.H.Mody with Ms.Aruna Mehta i/b.S.Pathak & Co. for plaintiffs. Mr.M.U.Pandey for respondent in chamber summons. CORAM : V.C.DAGA, J. CORAM : V.C.DAGA, J. CORAM : V.C.DAGA, J. DATED : 24th January, 2008 DATED : 24th January, 2008 DATED : 24th January, 2008. P.C.: P.C.: P.C.: . Heard. . Perused chamber summons with affidavit in support thereof. 2. This Chamber Summons is taken out by the plaintiff in the year 2008 in a suit filed in the year 1990 to implead "Rupshi Pethabhai Shah" as defendant No.1 in the suit. Basis of Amendment :- Basis of Amendment :- Basis of Amendment :- ------------------ ------------------ ------------------ 3. The basis of chamber summons is the pleadings reflected in the written statement filed by the defendant No.2 in the month of June, 1995, stating that by and under Deed of Assignment dated 16th March, 1994, he has assigned his business, all assets including goodwill and tenancy rights in the suit premises; in favour of defendant No.1- Rupshi Pethabhai Shah. Nature of the Amendment :- Nature of the Amendment :- Nature of the Amendment :- ----------------------- ----------------------- ----------------------- 4. The nature of the amendment can be seen from the Schedule annexed to the chamber summons. In paragraph-I, description of the proposed defendant No.10 with address is given. In paragraphs-II and III, the text of paragraph 11A and 11B, which are sought to be incorporated in the plaint, are described. 5. The plaintiff is also seeking to add prayer clauses to seek declaratory relief that the Deed of Assignment dated 16th March, 1994, is fraudulent and that the transfer made under deed of assignment is null and void. In addition to these reliefs, cancellation of said Deed of Assignment is also sought for. In the existing prayer clauses (b) and - 3 - (d), words "defendant No.10" are sought to be added so as to claim relief of possession of the suit property against defendant No.1. Prayer clause (d) is a prayer for interim relief against defendant No.10 (proposed defendant). 6. Having seen the nature and scope of proposed amendment, it is clear that two types of reliefs are claimed in the chamber summons viz. (i) declaratory relief seeking declaration of nullity and cancellation of the Deed of Assignment dated 16th March, 1994 and (ii) possession of suit property from the defendant No.10. The Issue : The Issue : The Issue : --------- --------- --------- 7. The issue before me is: Whether chamber summons should be made absolute, especially, when all the reliefs claimed by way of amendment are barred by limitation on the face of record. Consideration :- Consideration :- Consideration :- ------------- ------------- ------------- 8. The law of amendment of plaint is well settled. In Charan Das v. Amir Khan Charan Das v. Amir Khan Charan Das v. Amir Khan, AIR 1921 PC 50, the Privy Council observed: - 4 - ". That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case." In this behalf, it would be profitable to refer to the leading judgement of the Apex Court in the case of Pirgonda Hongonda Patil v/s.Kalgonda Shidgonda Pirgonda Hongonda Patil v/s.Kalgonda Shidgonda Pirgonda Hongonda Patil v/s.Kalgonda Shidgonda Patil & Ors. reported in AIR 1957 S.C. 363 Patil & Ors. reported in AIR 1957 S.C. 363 Patil & Ors. reported in AIR 1957 S.C. 363, wherein the Apex Court observed as under :- "All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up afresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not? Observations of Batchelor, J. in Kisandas Rupchand v/s. Rachappa Kisandas Rupchand v/s. Rachappa Kisandas Rupchand v/s. Rachappa Vithoba in 33 Bom. 644 Vithoba in 33 Bom. 644 Vithoba in 33 Bom. 644, Approved." - 5 - (emphasis supplied) 9. The observations of Batchelor, J. in Kishandas Rupchand v. Rachappa Vithoba Kishandas Rupchand v. Rachappa Vithoba Kishandas Rupchand v. Rachappa Vithoba, 33 Bom 644 at page 655(c) approved by the Apex Court are as under: "All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties..... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same; can the amendment be allowed without injustice to the other side, or can it not?" 10. The settled legal position which emerges from the above judgments is that a limitation for suit is a factor to be taken into account in - 6 - exercise of discretion as to whether amendment should be allowed or not. But it does not affect the power of the Court to order it in the interest of justice. While considering this aspect it is required to be considered whether any right is created in favour of the persons sought to be added as party defendant by lapse of time, and, if yes, whether amendment, if allowed, would cause him any injury. If yes, then whether that person can be compensated in costs. If the answer to the last question is in affirmative, then the amendment even if barred by limitation can be allowed subject to payment of costs. If the answer is in negative, then it must be rejected. 11. Keeping the aforesaid principles in mind, let me turn to the factual matrix of the chamber summons. The plaintiff was already put on notice in the month of June, 1995 when the written statement was filed that by and under the Deed of Assignment dated 16th March, 1994, he has parted with possession in favour of proposed defendant No.10. Therefore, the knowledge of the fact of assignment can be fastened to the applicant- plaintiff in the month of June, 1995. Article 58 of the schedule - 7 - appended to the Limitation Act, 1963 lays down the period of limitation for obtaining declaratory relief, which is three years from the date right to sue first accrues. Consequently, claim for seeking declaratory relief of nullity as well as cancellation of instrument is three years, which has already expired in the year 1998 itself. 12. So far as the relief to claim possession of immovable property is concerned, it has expired with the expiry of 12 years from the date of knowledge i.e. the day on which written statement was filed. 13. The chamber summons is taken out in the month of January, 2008 with prayer clause for condonation of delay. There cannot be condonation of delay in filing suit. Consequently, by condoning delay, chamber summons cannot be allowed. A valuable right has accrued in favour of the proposed defendant by lapse of time, which in my considered view, cannot be demolished. Deprivation of this right cannot be compensated in terms of money by awarding costs. 14. The law assists those who are vigilant, not - 8 - those who sleep over their rights, to bring possessory action, there is a time limitation settled, beyond which no man can avail himself of the possession himself or his ancestors; or take advantage of the wrongful possession of his adversary; if he were negligent for a long and unreasonable time, the law refused afterwards to lend him any assistance to recover the possession; because it is presumed that the supposed wrong door has in such length of time procured a legal title, otherwise he would sooner have been sued. The legislature has in this, as in every civilised country that has ever existed, thought fit to prescribe certain circumstances of time, after which persons may suppose themselves to be in peaceable possession of their property and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their title may be most difficult to obtain. 15. Apart from the above, present chamber summons suffers from another defect since there is - 9 - no clause disclosing cause of action against proposed defendant No.10. Even on this count, chamber summons cannot be made absolute. No special circumstances are brought on record to bypass settled legal position sketched hereinabove. 16. In the circumstances, in exercise of discretion and interest of justice. chamber summons is liable to be rejected. 17. In the result, chamber summons is rejected for the reasons recorded with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)