1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.904 OF 2009 IN SUIT NO. 2435 OF 2005 Indu Patel & Anr. ..... Plaintiffs/ Applicants. V/s Sudha Chowgule & Ors. ....Defendants Mr. J.P. Sen i/b Federal Rashmikant for plaintiffs. Mr. D.D. Madon, Senior Advocate i/b Crawford Bayley & Co. for defendant No.1. Mr. Karl Shroff i/b Bachubhai Munim & Co. for defendant No. 3. CORAM: V.M. KANADE, J. DATE : 24 th September, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of the applicants and the learned Counsel appearing on behalf of defendant No.3. 2. Applicants are original plaintiffs. They have filed this Chamber Summons for amendment of the plaint in terms of scheduled annexed to the Chamber Summons. Plaintiffs, 2 initially, have filed this suit, seeking declaration that the Will dated 23/1/2005 of the original plaintiff No.1 and purported gift/transfer of shares of defendant No.4 by plaintiff No.1 in favour of defendant No.1 is null and void and also for return of records, registers, minutes books and books of accounts of defendant No.4 by defendant No.1 to the registered Office of defendant No.4. 3. Chamber Summons has now been filed in which it is stated that plaintiff No.2 came to know that plaintiff No.1 had executed certain documents and that certain minutes books were fabricated. Plaintiffs are now seeking to challenge the said subsequent documents which were brought to the notice of the plaintiffs in 2006. Plaintiffs, therefore, are now challenging the minutes of certain board meetings which were held on 22/1/2005, 23/1/2005, 25/2/2005, 6/3/2005, 21/4/2005 as also letter dated 18/12/2004, Affidavit-cum-Indemnity dated 22/1/2005 and they are also seeking other consequential reliefs. 4. The learned Counsel appearing on behalf of defendant No.3 vehemently opposed this amendment and it is submitted that all these documents are pertaining to the period prior to filing of the suit. He submitted that specific averments 3 have been made in the plaint that the minutes books were in the custody of defendant No.1. He submitted that specific prayer could have been made in the plaint for the purpose of challenging other documents. He submitted that, therefore, firstly, the said reliefs which are claimed and which are sought to be added by way of amendment to the plaint are clearly barred by limitation. He further submitted that plaintiffs had failed to take leave of the Court under order II Rules (2) and (3) of the Civil Procedure Code and since plaintiffs had omitted to claim these reliefs at the time of filing of the suit and had not sought leave of this Court earlier, they are not entitled to amend the plaint and seek additional reliefs. 5. Counsel for plaintiffs in rejoinder has invited my attention to the judgments of the Apex Court in Ragu Thilak D. John Vs. S. Rayappan and others reported in (2001) 2 SCC 472 and in Pankaja and another vs. Yellappa (Dead) by Lrs. and others reported in (2004) 6 SCC 415. He submitted that so far as Order II Rules (2) and (3) is concerned, since plaintiffs became aware of the existence of these documents in 2006 after filing of the suit, there was no occasion for plaintiffs to have known about existence of these documents and, therefore, could not sought any leave under Order II Rules (2) and (3). 4 6. I have heard both the Counsel at length. It is well settled position in law as laid down by the Apex Court in Ragu Thilak D. John (supra) that the Court has discretion of keeping the question of limitation open since it is a mixed question of fact and law and, on that ground, Court may not reject the application for amendment of the plaint. In Ragu Thilak D. John (supra), the Apex Court, in para 5 of its judgment has observed as under:- “5. After referring to the judgments in Charan Das v. Amir Khan [AIR 1921 PC 50], L.J. Leach & Co. Ltd v. Jardine Skinner & Co. [AIR 1957 SC 357], Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393, Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] and various other authorities, this Court in B.K. Narayana Pillai v. Parameshwaran Pillai [(2000)1 SCC 712] held : (SCC p. 715, para 3) “3. The purpose and object of Order 6 Rule 17 CPC is to allow either 5 party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule practically in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation.” 6 In my view, ratio of the said judgment clearly applies to the facts of the present case. The question of limitation raised by defendant No.3, therefore, will have to be left open though amendment of the plaint is allowed at this stage. The Court, therefore, shall frame an issue of limitation in respect of the reliefs which are now added to the plaint by way of amendment. So far as question of leave under Order II Rules (2) and (3) is concerned, according to plaintiffs, they became aware of these documents in the year 2006. Though Chamber Summons was filed by the plaintiffs in the year 2007, the said Chamber Summons was taken out for the purpose of bringing heirs on record of original plaintiff No.1 and, therefore, merely because the said Chamber Summons was taken out for bringing heirs on record and not for amendment, cannot be a ground for rejecting the Chamber Summons for amendment of the plaint which has now been filed in the year 2009. 7 7. Under these circumstances, Chamber Summons is allowed. Plaintiffs are permitted to amend the plaint as per schedule annexed to the Chamber Summons subject to however question of limitation being kept open and which would be the subject matter of the issue after the plaint is amended as prayed by plaintiffs. 8. Chamber Summons is accordingly disposed of. Amendment to be carried out within four weeks. Amended copy of the plaint be served on defendants within two weeks thereafter. Amendment of the Chamber Summons is also allowed for the purpose of replacing Exhibit-OO by the Exhibit which is now tendered in Court. After amended plaint is served, defendants may file their Written Statement within 8 weeks. (V.M. KANADE, J.) 8