: 1 : chs-1749-09-C=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1749 OF 2009 IN SUIT NO. 1561 OF 2006 Bimladevi Omprakash Aggarwal .. Plaintiff v/s. Atam Prakash Aggarwal & Ors. .. Defendants ......... Mr. R.L. Tolat i/by M/s. L.C. Tolat & Co. for the plaintiff in support of NMS and applicant in CHS. Mr. S.U. Kamdar, Sr. Counsel with Ms. Pooja Patil i/b Munir Merchant for for defendants. ......... CORAM : R.Y.GANOO, J. DATE : 1st DECEMBER, 2010 P.C. : 1. The plaintiff claims to be the owner of the suit flat and that was the prayer in terms of prayer clause (a). Some other prayers are noted as regards right of the plaintiff in a company by name Devidayal Stainless Steel Industries Pvt. Ltd. During the pendency of this suit, plaintiff has moved with this present chamber summons. I have heard learned Counsel on both sides. By this chamber summons, plaintiff wants to amend the plaint ultimately to seek substantive prayer that Gift Deed dated 17th May, 2003 in regard to the suit flat is void. Plaintiff : 2 : chs-1749-09-C=.sxw wants that the said gift deed should be cancelled. Plaintiff also wants a sum of Rs.1 lakh per month by way of compensation for wrongful user of the flat by the defendants during the pendency of the suit. 2. Few facts are required to be noted namely that the plaintiff claims that the Gift Deed dated 17th May, 2003 was obtained by the defendants by misrepresentation and by playing fraud. The suit came to be filed on 25th March, 2006 seeking declaration that the plaintiff is the exclusive owner of the suit flat. Giving concession to the plaintiff as regards the knowledge of the said Gift Deed as being executed by her under the circumstances by which she could claim the said gift deed as void, the suit to challenge such a gift deed could have been instituted within 3 years from the date of knowledge of facts entitling the plaintiff to have instrument set aside. In the plaint, there is a general averment at paragraph 16 that the plaintiff realized that certain documents including some gift deed were obtained by the defendants. The present amendment is filed in October, 2009. In the schedule i.e. paragraphs on the basis of which plaintiff wants to say that the said gift deed as void, it was necessary for the plaintiff to plead as to the first date on which she realized that the said gift deed has brought by fraud / misrepresentation. No such specific date is pleaded. In such a situation, institution of this chamber summons for amendment of the : 3 : chs-1749-09-C=.sxw plaint to seek a declaration that the gift deed is void and filed in October, 2009 is beyond the period of limitation as the period of limitation would get governed by Article 59 of the Limitation Act, 1963. Considering the question of delay, if the chamber summons is granted, it would mean that the plaintiff is permitted to bring before the Court a lis which is already time barred. Such a course is not permissible. Hence, the amendment in terms of prayer clause A(a) mentioned in the schedule as well as amendment in terms of prayer clause A(b) mentioned in the schedule, cannot be granted. If such a relief cannot be granted, there is no question of allowing the plaintiff to carry out amendment in the text of the plaint as such a grant would be redundant. In view of the above, this chamber summons will have to be dismissed. Hence, following order is passed to dispose of the chamber summons. ORDER (i) Chamber summons is dismissed. There shall be no order as to costs. (R.Y.GANOO, J.)