1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 345 OF 2009 IN CHAMBER SUMMONS NO. 475 OF 2009 IN SUIT NO. 640 OF 1968 Rati Doss Bharucha. ... Appellant. V/s. Mrs. Naju M. Kavarana & Ors. ... Respondents. Mr. P.A. Sawant i/b. J.N, Mamniya for the Appellant. Mr. D.R. Zaiwala, Sr. Advocate a/w. V.C. Kotwal, Sr. Adv., M.K.J. Presswala, Ms. Khushrushahi for Respondent Nos.1 to 4. Mr. Uday Bobade for Respondents 5 to 8. CORAM : ANIL R. DAVE, C.J. & S.C. DHARMADHIKARI,J. JUDGMENT RESERVED ON : 05th MARCH 2010. JUDGMENT PRONOUNCED ON : 23rd MARCH 2010. ORAL JUDGMENT :- Admit. Respondents waive service. By consent, the Appeal is heard finally. 2. This Appeal under Clause 15 of the Letters Patent is directed against the order of the learned Single Judge dated 8th July 2009 in Chamber Summons No.475 of 2009 in Suit No.640 of 1968. 2 3. The Appellant moved the Chamber Summons for amendment of the plaint in terms of the Schedule annexed to the said Chamber Summons. The Schedule to the Chamber Summons reads as under :- “I. In the Plaint, at page 10, after para 14, add the following as para 14A : “The Plaintiff states that the Defendant Nos. 5,6,7 & 8 do not have any right, title or interest in the said estate. The Plaintiff will rely on the following documents in support of the said contention : (i) A letter dated 22nd February 1983 whereby Mrs. Roda A. Lalkaka – Original Plaintiff No.2 gave up her right, title and interest in favour of Doss Bharucha – Original Plaintiff No.1. (ii) A writing executed in December 1997 whereby Zarine Hoshang Shroff – Original Plaintiff No.2A confirms that her mother Mrs. Roda A. Lalkaka during her lifetime renounced, released and discharged forever her share in favour of Doss Bharucha – Original Plaintiff No. 1. (iii) A joint declaration dated 6th May 2008 whereby Defendant No.5, 6, 7 and 8 the Original Plaintiffs 2A(a),(b),(c) and (d) 3 declared and brought on record that they have no right, title or interest in the Bharucha Building and declared that the 1/5th share absolutely belongs to Miss. Rati Doss Bharucha, Plaintiff No.1A alone.” 3. The said Chamber Summons was supported by an affidavit of the Appellant. She stated that at the relevant time she was Plaintiff No.1A. The Original Plaintiff No.1 Mr. Doss Bharucha and Original Plaintiff No.2 Mrs. Roda (since deceased) have filed the instant Suit against the Respondents, who are Original Defendants for administration of the estate of Bai Navajbai and for other reliefs as set out in the plaint. 4. It is further stated that on the death of Original Plaintiff No.2, her daughter Ms. Zarine Hoshang Shroff was brought on record as Plaintiff No.2A and name of Original Plaintiff No.2 was deleted. The said Zarine Hoshang Shroff expired on 8th November 2007. On her death, Defendant Nos.5 to 8 were earlier impleaded as Plaintiff Nos.2A, 2B, 2C and 2D. Later on, by an order dated 22nd January 2009 passed by this Court, Plaintiff Nos.2A to 2D were transposed as Defendant Nos.5 to 8. Pursuant to this order, the Plaintiff is required to file the instant Chamber Summons. 5. In paragraph 5 of the affidavit in support dated 17th March 2009, it was stated that the Plaintiff desires to place on record the fact that predecessors of the transposed Defendant Nos.5 to 8 have transferred/relinquished their right, title and interest in the estate of Bai Navajbai in 4 favour of Original Plaintiff No.1. This fact was confirmed by Defendant Nos. 5 to 8 by executing a declaration. Therefore, the amendment is necessary to completely and effectively administer the estate of the deceased Bai Navajbai and ascertain the shares of the Plaintiff and the Defendants. This will enable the Court to completely and effectively adjudicate the disputes between parties. For all these reasons, the Chamber Summons be allowed. 6. The Chamber Summons was opposed by original Defendant Nos.4 and 5 (Respondent Nos.4 and 5) who filed their affidavits in reply. 7. The Original Defendant No.4 contended that the Chamber Summons cannot be allowed inasmuch as the dispute raised by the amended pleas is interse between the heirs of the Original Plaintiffs Doss Maneckshaw Bharucha and Roda A. Lalkaka. The Original Plaintiff No.2 - Roda Lalkaka expired on or about 26th November 1991, her daughter Zarine Hoshang Shroff was brought on record as Plaintiff No.2A. When Plaintiff No.1 expired on 30th November 2007, his daughter, the present Plaintiff came on record. The present Plaintiff thereafter brought on record the heirs of Zarine Hoshang Shroff (deceased, who expired on 8th November 2007). These heirs are the husband and children and they have been impleaded as Plaintiff Nos. 2A to 2D. The order to that effect was passed on 30th April 2008. 8. It is alleged that the persons who are added as Plaintiff Nos.2A to 2D were not aware of their addition and 5 impleadment. Therefore, the Chamber Summons to transpose them as Defendants was moved and an order came to be made in furtherance thereof, transposing Plaintiff Nos.2A to 2D as Defendant Nos.5 to 8. 9. The principal objection raised by Defendant No.4 was that the claims made by the Plaintiffs against Defendant Nos.5 to 8 cannot be the subject matter of the present Administration Suit. This Suit is to determine the shares of each branch of Navajbai as per her Will and for administration of the estate. Therefore, any amendment relating to their dispute is irrelevant, vexatious and wholly unnecessary. In the subsequent paragraphs of the affidavit in reply, the merits of the amendment were dealt with. 10. Lastly, it was contended that Order VI Rule 17 as amended by the Code of Civil Procedure is in mandatory terms. The proposed amendments are alleged facts which could have been raised by the Original Plaintiff No.1 even before the trial began in the year 2007. It is urged that trial commenced after framing of the issues on 26th July 2007 and examination and cross-examination of Original Plaintiff No.1. Therefore, the Chamber Summons be dismissed. 11. The reply affidavit of Defendant No.5 is more or less on identical lines. It is stated that the amendment is malafide and nothing but a delaying tactic. The amended plea is barred by the law of limitation. Further, by the proposed amendment, the Plaintiff seeks to change and alter the entire cause of action by bringing in inter-se dispute of one branch of the heirs of Navajbai and 6 therefore, the Chamber Summons be dismissed. The Plaintiff cannot establish her title to the 1/5th share coming to the branch of Maneckshaw in the present administration Suit. For all these reasons, the Chamber Summons be dismissed and more particularly, when the proviso to Order VI Rule 17 of the Code of Civil Procedure (as amended) is applicable to this case. The evidence is now closed and the Suit is listed for arguments. 12. The Appellant/Plaintiff filed her rejoinder affidavit and denied all these contentions. She urged that the Chamber Summons is not malafide at all. The proposed amendments do not change the cause of action. On the other hand, the proposed amendment would assist this Court in completely and effectively adjudicating the disputes between parties, there is no question of the trial being delayed as the events that are stated in the Chamber Summons have taken place after trial had commenced and particularly, on the transposition of parties. For all these reasons, there is no substance in the objection and the Chamber Summons be allowed. 13. The Chamber Summons was placed before the learned Single Judge, who, by the impugned order proceeded to dismiss it. The learned Judge held that the Suit is for administration of the estate of Bai Navajbai. The evidence is already recorded and the matter is closed for arguments. In such a Suit, interse dispute between the heirs and specially at this stage cannot be entertained. No sufficient reasons or due diligence have been shown to bring these documents of 1983, 1997 and 2008 now, on 7 record. Plaintiff No.1A/Applicant to the Chamber Summons had full knowledge of this document and nothing has been brought on record to show that why they were not produced at the appropriate stage. In these circumstances, the learned Judge rejected the submission that the Chamber Summons was moved after transposition. He held that in view of order VI Rule 17 proviso, the amendments cannot be allowed. In paragraphs 4 and 5 of this order, the learned Judge has held as under :- “4. In the suit for administration of the estate, such inter-se dispute between the heirs, and specially at this stage of the suit cannot be entertained. There are no sufficient reasons or due diligence shown and or brought on record to support this Chamber Summons to bring these documents of the 1983, 1997 and 2008 now, on the record. The Applicant – Plaintiff No.1-A has full knowledge of this document. There is nothing brought on record that why these documents could not be produced at the appropriate stage. The submission that this Chamber Summons was taken out after transposition as referred above, is also unacceptable. The rights so created, even if any, based upon these documents ought to have been placed at the earliest possible time. Therefore, in view of Order 6, Rule 17, proviso and Order 8, Rule 1-A, the amendment so sought with documents, in the present facts and circumstances cannot be allowed. 8 5. Even otherwise, the inter-se dispute between the Legal Heirs should not halt the main proceedings of the suit of the year 1968 which is at the stage of final hearing. Whatever the rights of the Applicant – Plaintiff 1-A, even if nay, that need to be agitated in appropriate proceedings to settle their inter-se dispute or her rights. Therefore, the documents, as well as, the averments so made in no way necessary to adjudicate or to decide the issues of the present suit. On the contrary, it will frustrate and delay the proceedings of this suit which is pending since 1968.” 14. It is this conclusion of the learned Judge which is under challenge in this Appeal. 15. Mr. Sawant, learned Advocate appearing on behalf of the Appellant submits that the impugned order is erroneous. He submits that the learned Judge ought to have appreciated that from the family tree it would be clear that heirs of Navajbai had no issue. The executor was one Nanabhoy K. Bharucha. His son Nawroji had expired way back in 1964. Even Manekshaw Kaikhushru and other sons and daughters of the Executor have all expired. It is the heirs of Manekshaw, who alone are alive. It is they who are claiming under the Will of Navajbai. It is not as if the subject matter of the Suit has been changed or altered. The Suit is for administration of the estate of the deceased Navajbai. The prayer is that the shares of the parties to the Suit in the estate of the deceased be ascertained, 9 determined and declared by this Court. Upon the death of Navajbai, the Suit earlier came to be filed by Original Plaintiff No.1 Mr. Dossa K. Bharucha and Original Plaintiff No.2 Mrs. Roda. These persons are claiming as beneficiaries under the Will of late Navajbai. Original Plaintiff No.2 Mrs. Roda expired and after her death, her daughter Zarine was brought on record as Plaintiff No.2A. Ms. Zarine expired on 8th November 2007. Therefore, Defendant Nos.5,6,7 and 8 were earlier brought on record as Plaintiff Nos.2A,2B,2C and 2D. Mr. Sawant submits that the transposition was ordered by this Court on 22nd January 2009. Mr. Sawant submits that earlier there was no occasion for the documents to be produced including the declaration because there were no disputes raised. All were Plaintiffs. However, it is not a disputed fact that the declaration is dated 30th April 1997. That declaration had to be put in issue because Original Plaintiff No.2A Roda had been brought on record as daughter of Zarine Shroff – Original Plaintiff No.2. Zarine Shroff had declared and confirmed that her mother during her lifetime has given up her tenancy rights in favour of her uncle Doss Bharucha – Plaintiff No.1. There may have been dispute with regard to admissibility of these documents but nonetheless, according to Mr. Sawant, it cannot be said that this is an interse dispute between heirs. Ultimately, whether it is the Plaintiff or Defendant Nos. 5 to 8, all of them are claiming as beneficiaries under the Will of late Navajbai. They may be claiming through some intermediaries but the fact remains that the intermediaries are no more. Therefore, the estate will have to be administered between these surviving parties as per their shares under the Will of late 10 Navajbai. In these circumstances, the learned Judge was in error in holding that interse disputes between heirs are being projected and therefore, the plaint cannot be amended. 16. Mr. Sawant also contends that until the transposition, there was no occasion for surviving Plaintiff to amend the plaint. Even if the Suit is of the year 1968, it is the event during the pendency thereof which led to the application for amendment. Therefore, Order VI Rule 17 proviso would have no application of this case. The recording of evidence may have commenced and possibly concluded in the opinion of the learned Judge. However, when the matter was pending at the stage indicated by the learned Judge that the transposition has been directed by the Court and the controversy therefore will have to be resolved in accordance with the said directions. 17. In these circumstances, when the structure of the Suit is not undergoing any change nor is there any alteration in the cause of action, then, the learned Judge should not have rejected the Chamber Summons as belated or being hit by the proviso to Order VI Rule 17 of C.P.C. These are matters over which parties to the litigation had no control and therefore, the order of the learned Judge is vitiated by an error apparent and deserves to be set aside. 18. On the other hand, Mr. Zaiwala, learned Senior Advocate appearing on behalf of Respondent Nos.1 to 4 and Mr. Bobde, learned Advocate appearing on behalf of Respondent Nos. 5 to 8 supported the impugned order. In 11 their submission, the attempt now made is to bring in disputes which have no connection with the main reliefs. These are disputes between heirs and therefore, the learned Judge was right in dismissing the Chamber Summons. It is their contention that the trial has commenced with framing of issues on 26th July 2007 and therefore, reliance on proviso to Order VI Rule 17 is justified. Further, the document which is sought to be relied upon is not registered and therefore, cannot be brought on record or admitted in evidence. Mr. Zaiwala also submits that the disputes between the heirs of the Original Plaintiffs are not within the purview of the present adjudication. For all these reasons, the Chamber Summons be dismissed. 19. With the Assistance of the Counsel appearing for parties, we have perused the Chamber summons, the affidavits filed in reply and rejoinder, the plaint and the order under Appeal. The only question that arises for our consideration is whether the learned Single Judge was right in dismissing the Chamber Summons. 20. Order VI Rule 17 of the Code of Civil Procedure reads as under :- “[17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be just, and all such amendments shall be made 12 as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.] High Court Amendments – [Bombay]. - In Order VI, for the existing Rule 17 and its marginal note, substitute the following as Rule 17 and marginal note :- “17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Where, however, an application for amendment is made by the Plaintiff in a suit in which the Defendant has not appeared, though served with a summons, and where in the opinion of the Court the amendment applied for is a material one, the Court shall give notice of the application to the Defendant before allowing the amendment; and where in the absence of the application to the 13 Defendant before allowing the amendment ; and where in the absence of the Defendant the Court grants any amendment in a form materially different from that of which notice has been given to the Defendant, a copy of the amended plaint shall be served on the Defendant.” 21. We are not deciding the wider controversy as to whether after the amendment to the C.P.C. by the Central Act viz. C.P.C. (Amendment) Act, 2002, whether Order VI Rule 17 as enacted in Bombay, survives or not. 22. Suffice it to state that it is well settled that all Rules of procedure being intended to secure proper administration of justice, it is essential that they should be made to serve and support that purpose so that full powers of amendment must be enjoyed and should be liberally exercised save and except one distinct cause of action cannot be substituted for another nor by means of amendment, subject matter of the Suit can be changed. Further, the proviso does not mean that application for amendment cannot be allowed after trial has commenced. All that it requires is that the Court must come to a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 23. In the instant case, the Suit is filed for administration of the estate of the deceased Navajbai and Doss Bharucha. Prayers (a) and (b) are that the estate be administered by ascertaining the share, right and interest of parties to the Suit in the same. There are further reliefs claimed but 14 essentially this is a Suit for administration of the estate of the deceased. It is common ground that initially the Suit was filed by one Doss Bharucha and Mrs. Roda. Thereafter, the plaint had to be amended after the death of Original Plaintiff No.1 and Original Plaintiff No.2 Roda. Upon death of Original Plaintiff No.2, her daughter Ms. Zarine Shroff was brought on record as Plaintiff No.2A. Even Ms. Zarine expired on 8th November 2007 and upon her death, the present Defendant Nos. 5 to 8 were brought on record as Plaintiff Nos.2A to 2D. Although, they were impleaded as Plaintiffs subsequently by an order dated 22nd January 2009, they came to be transposed as Defendant Nos.5 to 8. The case of the Appellant is that she is required to amend the plaint on account of these developments and place on record that the predecessors of the transposed Defendants had relinquished their right, title and interest in the estate of Bai Navajbai. It is common ground that both the Plaintiff/Appellant and Defendant Nos.5 to 8 claim share and right in the estate of Bai Navajbai. Even their predecessor in title was claiming such an interest and right. Thus, all of them are claiming the estate of Bai Navajbai, which is required to be administered and managed by this Court. Such administration and management is by ascertaining the right, title and interest of parties to the Suit therein. Therefore, we are of the view that by amending the plaint so as to introduce certain facts and documents pertaining to the alleged transfer and relinquishment by predecessors in title of Defendant Nos.5 to 8 does not change the nature of the Suit or substitute the cause of action therein. 15 24. The learned Judge ought to have perused the plaint as amended. It was the case of the parties that Navajbai died without any issue, leaving her last Will and Testament. She died possessed of considerable movable and immovable properties. Clause 2 of the Will has been referred to in paragraph 3 of the plaint and it is stated that under the same, three executors and trustees have been appointed. They are, the brother in law of the deceased Navajbai, eldest son of the brother in law and second son of the brother in law. They were directed to take charge of her estate. The family tree is annexed as Annexure ‘C’ to the plaint. It is clear from a perusal thereof that not only each of the Executors and Trustees are dead but everybody in the first generation of Nanabhoy’s family also is no more. It is through Manekshaw, who is the Executor No.3/second son of Nanabhoy that the Original Plaintiffs claimed their right. Further, after the Original Plaintiffs, it is the parties to the Suit who are the remaining heirs. By referring to the clauses of the Will it is stated in the original plaint that the three trustees applied for and obtained probate of the Will of the deceased and thereafter, Nanabhoy expired and Nawroji solely managed and controlled the affairs of the estate of the deceased. Nowroji did not pay the share to the legatees and subsequently, he also died leaving a Will dated 8th November 1960 under which he appointed his brother Kaikhushru and Nariman, son of Kaikhushru (Defendant No.4) as his Executor and Trustee. Thereafter, it is stated that upon the death of Nowroji, the said Manekshaw became the surviving Executor of the Will of the deceased Navajbai. Manekshaw also expired on 8th May 1964 leaving a Will dated 8th February 1964 to which a 16 reference is made in paragraph 9 of the plaint. A reference is made to the registered gift deed dated 5th October 1956 executed by Manekshaw and thereafter, in paragraph 11 of the plaint, it is stated that upon the death of the said Nanabhoy in the year 1948, the residuary estate of the deceased became divisible amongst the surviving legatees. It is on this basis that the reliefs in the original plaint have been claimed. 25. Thereafter, the plaint had to be amended after death of Original Defendant No.3, Original Plaintiff No.2(a) and Original Plaintiff No.1. It is pertinent to note that the heirs of the Original Plaintiff No.2(a) and Original Plaintiff No.1 are none others than the present Plaintiff/Appellant and Defendant Nos.5 to 8. In the plaint, a reference is made to these facts and in paragraphs 10(a) and 10(b) it has been pointed out as to how after the death of Original Defendant No.1, it is Defendant No.4 who is sued as Heir and Legal Representative. Even the Original Defendant No.2 expired on 5th March 1984 and Defendant Nos.3 and 4 are being sued in their additional capacity as Heirs and Legal Representatives of Defendant No.2. We have referred to all this only because the Judgment under Appeal proceeds to hold that what are being now projected are interse disputes between the Heirs. To our mind, the assumption on which the order under Appeal has been passed is erroneous and unsustainable. These are not interse disputes which are being projected but what the Court would be primarily required to do is to administer the estate of the deceased Navajbai in accordance with the rights of the parties and on