- 1 - app309.313 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 309 OF 2011 in CHAMBER SUMMONS NO. 766 OF 2010 in SUIT NO.2656 OF 2006 Sarla Harsukh Kothari & Ors .. Appellants (Orig.Applicants) vs Harsukhrai Narbheram Kothari & Ors .. Respondents (Orig.Plaintiffs Orig.Defendants & Orig.Respondents) with NOTICE OF MOTION NO.1686 OF 2011 in APPEAL NO. 309 OF 2011 in CHAMBER SUMMONS NO.766 OF 2010 in SUIT NO.2656 OF 2006 Sarla Harsukh Kothari .. Appellants vs Harsukhrai Narbheram Kiothari & ors .. Respondents with APPEAL NO.313 OF 2011 in CHAMBER SUMMONS NO.203 OF 2009 in SUIT NO.2656 OF 2006 Sarla Harsukh Kothari .. Appellant - 2 - app309.313 vs Harsukhrai Narbheram Kothari & ors . Respondents -------- Mr. P. K Samdani Sr. Advocate with Mr.Vishal Kanade i.b. M/s Mahimtura & Co for Appellants Mr. Pankaj S.Shah for Respondent nos. 2 to 4 in Appeal No.309 of 2011 and 313 of 2011 Mr. R.M.Vasudeo for Respondent no. 15 in Appeal No. 309 of 2011 and Respondent No. 14 in Appeal No .313 of 2011 Mr. Suresh M.Shah for Respondent No.10 and 11 in Appeal No.313 of 2011 Mr. Deepak Chitnis for Respondent nos. 12 and 13 CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J DATE: 27th June, 2011 P.C. 1. These appeals are directed against the order of the learned trial Judge of this court rejecting Chamber Summons Nos.203 of 2009 and 766 of 2010 which were filed by the appellants for bringing themselves on record and legal representatives of deceased Plaintiff and amendment of the plaint and for bringing heirs of deceased defendant no.10 on record respectively. In Appeal No. 313 of 2099 as far as heirs of defendant no.10 are concerned, learned counsel for the appellants states that the said heirs have been served. Mr. Pankaj S Shah, learned counsel has appeared for the respondent nos. 2 to 4 (Original defendant nos.1 to 3) and respondent nos. 12 and 13 (Original defendant nos. 11 and 12) have appeared before us through counsel Mr.Deepak Chitnis. Respondent no.15 (Original defendant no.14) has also appeared through Mr. R.M.Vasudeo. - 3 - app309.313 2. Suit No.1256 of 2006 came to be filed on the Original side of this court by Harsukhrai Narbheram Kothari for dissolution of the partnership firm namely “Calico Industrial Engineers” and for accounts. The suit was filed by the plaintiff in his capacity as karta of Harsukhrai Narbheram Kothari, HUF. The respondents- defendants filed their written statement contending as under : “WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT NOS. 1 TO 3 ABOVENAMED FILED ON 29TH NOVEMBER, 2007“ 3. These defendants admit that the Plaintiff is a partner of the suit firm but in his individual capacity and not as karta of Harsukhrai N.Kothari-HUF. These defendants state that it is pertinent to note and on the plaintiff's own showing that the Deed of Partnership dated 2nd November,1998 being Exhibit “C” to the plaint, the plaintiff has signed the said Deed of Partnershp in his individual capacity and not as karta of Harsukhrai N.Kothari-HUF. Similarly, separate written statements filed on behalf of defendant nos. 10 and 11 on 11th October, 2008 and on 21stDecember, 2008 also specifically stated as under: - 4 - app309.313 “ The plaintiff has filed this suit in his capacity as karta of Harsukhrai Narbheram Kothari ('HUF) which he claims to a partner of Calico Industrial Engineers but the plaintiff is not shown as Karta of HUF in the Partnership Deed or in the registration record. Therefore, suit be dismissed with cost. “ 3. The original plaintiff died on 1st November, 2008. The present appellants thereafter took out the above referred Chamber Summons No.203 of 2009 for being brought on record and for amendment of the plaint and connected applications in terms of the schedule of the amendment. The relevant portion of the schedule reads as under : “3. In the body of the plaint, in paragraph 1, first line delete the words,“..karta of Harsukhrai N.Kothari-HUF which is ...” 4. In the body of the plaint, in paragraph 1, seventh line after the numbers “ ...400 099 “ add the following sentences. “ The original plaintiff died in 1 November 2008 leaving behind Plaintiff Nos.1A,1B 1C and 1D as his only legal heirs and representatives. The original plaintiff has left a will dated 28 December 2007 wherein Plaintiff Nos.1A,1B,1C and 1D have been appointed as executors. For the sake of brevity Plaintiff Nos.1A,1B,1C and 1D shall be collectively referred to as “ the plaintiff ”. 5. In the body of the plaint, in paragraph 1, fourteenth line after the words, “ ... that capacity in this suit,” add the following sentence, - 5 - app309.313 “ The original Defendant No.13 died on 26 November 2008. “ 6. In the body of the plaint, in paragraph, item (ii) in the first line delete the words,” ... in his capacity as karta of Harsukhrai N.Kothari (HUF)...” 7. Consequential amendment in the plaint, Notice of Motion No. 3177 of 2006 and Chamber Summons No. 7 of 2007. 4. Other Chamber Summons being Chamber Summons No. 766 of 2010 was filed for bringing on record the heirs of original defendant no.10 who died on 26th November,2008 in a terrorist attack in Bombay. 5. After hearing learned counsel for the parties, the learned trial Judge has rejected both the Chamber Summons on the ground that the Chamber Summons as filed in the present form are misconceived and the appellants would have to file a fresh Chamber Summons to seek appropriate reliefs in terms of averments in the affidavit-in-support of Chamber Summons No.203 of 2009, by observing as under : - 6 - app309.313 “ 6. The Plaintiff has filed the above suit in the capacity as karta of Harsukhrai N.Kothari – HUF a partner of Calico Industrial Engineers ('the firm'). This was a bonafide mistake that occured because the Plaintiff had impressed his share in the firm with the character of joint family property belonging to Harsukhrai N.Kothari–HUF. For the purposes of income tax the Plaintiff's share in the firm was treated as belonging to Harsukhrai N.Kothari–HUIF, and the plaintiff, as the karta, representing Harsukhrai N. Kothari – HUF. However, from the point of view of the firm, the share of partnership stands in the name of Harsukhrai Narbheram Kothari and the hindu undivided family and its other members have no standing. In the circumstances, it is necessary to correct the mistake as to the capacity in which the Plaintiff had filed the above suit. “ 6. The learned trial Judge held that the unless the relief in terms of the above underlined averments is sought, the appellants wold not be entitled to claim the reliefs as claimed in both the above Chamber Summons. 7. Learned counsel for the appellants has submitted that when the defendants in their own written statement had specifically stated that the original plaintiff was partner in the suit firm in his individual capacity and not as karta of HUF, the proposed amendments as prayed for after the death of the original plaintiff was perfectly in order and the learned trial Judge ought not to have dismissed the Chamber Summons. Reliance is placed on the decisions of the Apex Court in CHARANDAS HARIDAS VS THE COMMISSIONER OF INCOME-TAX AIR 1960 SUPREME COURT 910, JAI JAI RAM MANOHAR LAL vs NATIONAL - 7 - app309.313 BUILDING MATERIAL SUPPLY, GURGAON 1969 (1) Supreme Court Cases 869 and the decision of the Calcutta High Court in CHANDRADIP PROSAD VS JAGANNATH AGARWALLA AIR 1978 CALCUTTA 157. 8. On the other hand, learned counsel for the respondents have opposed the appeals and submitted that when the suit was filed by Harsukhrai Narbheram Kothari in his individual capacity as karta of Harsukhrai Kothari, HUF; the application for amendment could not have been filed by the appellants in their individual capacity and that the Chamber Summons could have filed by persons who claim to be either members of the HUF of which the original plaintiff was a karta. 9. After having heard learned counsel for the parties, we are of the view that the applications for bringing heirs on record coupled with the proposed amendment ought to have been allowed by the learned trial Judge. The defendants themselves had pointed out in their respective written statements which were filed in 2007 and 2008 that Harsukhrai Narbheram Kothari was partner in the suit firm in his individual capacity and not in his capacity as a karta of HUF. Apart from that, learned counsel for the appellants has rightly relied on the decision of CHARANDAS HARIDAS supra, namely that there are three different branches of law to notice. There is the law of Partnership which takes no account of a Hindu undivided family. There is also the Hindu law which permits a partition of the family and also a partial partition binding upon the family. Hindu law permits a HUF to do business by allowing its karta to become a - 8 - app309.313 partner in the partnership firm. 10. Moreover the apex court has also held in JAI JAI RAM MANOHAR LAL's case supra that the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. An amendment should be permitted as may be required for the purpose of determining the question between the parties if it can be made without injustice to the other side. As per settled legal position, the procedural law is the handmaid to the administration of justice and an amendment would normally be allowed unless it takes away the rights vested in the defendants in law. 11. Having heard learned counsel for the parties, and in the facts and circumstances of the case and especially having regard to the stand taken by the defendants themselves in their written statements we allow these appeals and set aside the impugned order of the learned trial Judge in so far as it dismisses the chamber summons. 12. In the result, Chamber Summons No.203 of 2009 is allowed in terms of prayer clauses (a) and (b) and Chamber Summons No. 766 of 2010 is allowed in terms of prayer clauses (a) (b) and (c). 13. As regards service on the other respondents is concerned, since defendants who had appeared before the learned trial Judge were the defendants who had filed their written statements wherein they had all contended that the original plaintiff was not partner of the suit firm in his individual capacity as karta but, in his capacity as - 9 - app309.313 karta of Harsukhrai N.Kothari and since all that we have done is to permit the appellants to bring the legal representatives of plaintiff and heirs of defendant no.10 on record and amend the plaint on aforesaid lines; we see no reason to delay the hearing of these appeals by waiting for the said respondents. 14. Notice of Motion No.1686 of 2011 also stands disposed of. CHIEF JUSTICE GIRISH GODBOLE, J