ssp 1 CHS 421 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.421 OF 2011 IN SUIT NO.3301 OF 1996 Minakshi M. Pitroda .....Plaintiff versus Kusumben Devchand Rathod and Ors. ..... Defendants Mr.R.N.Bhagattjee, for the applicant/plaintiff in support. Mr.D.D.Madon, Senior Advocate with Mr.Zubin Behramkamdin and Mr.Rohit Pandey i/by M/s.Vimla & Co., for defendant No.10A. Mr.P.K.Samdhani, Senior Advocate with Mr.Ashish Kamath, Mr.Vivek Shiralkar, Mr.Sushant Chavan, Ms.Deepali Khare and Mr.Siddharth Samantaray i/by Shiralkar & Co., for defendant Nos.1A to 6. CORAM: R.M.SAVANT, J. DATE: 28TH APRIL, 2011 P.C. : 1. By the above chamber summons, plaintiff seeks amendment of the plaint in terms of the Schedule. By the proposed amendment, prayers for quashing/impounding/cancellation of various documents mentioned in proposed prayer clause C-1 is sought. By prayer C-2, plaintiff seeks declaration that she is having undivided 50% share in the suit property. By way of prayer clause C-3, which is an interim prayer, it is prayed that construction being carried out on the suit property be stayed and status quo be maintained. By way of Clause C-4, plaintiff seeks ssp 2 CHS 421 of 2011 direction that defendant No.10A be directed to disclose all accounts of receipt of payment and expenditure incurred till date. 2. Proposed amendments are sought to be justified by the plaintiff on the ground that they are necessary for adjudication and for determination of the issues that arise in the above suit. It is submitted by the learned counsel for the plaintiff that the plaintiff has been deprived of her share in the suit property, which is the property of the partnership firm. Learned counsel for the plaintiff seeks to rely on the judgment of the Apex Court reported in (2006) 4 SCC 385 in the matter of Rajesh Kumar Aggarwal and Ors., V/s. K.K.Modi and Ors., in support of his submission that all amendments that may be necessary for determining the real question in controversy between the parties should be allowed, provided they do not cause injustice or prejudice to the other side. The cardinal test according to him, as laid down by the Apex Court is that it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. As indicated above, it is the case of the plaintiff that considering the reliefs which are sought in the present suit, the amendments as contained in the Schedule are necessitated. 3. Per contra, it is submitted by the learned Senior Counsel appearing for the contesting defendants Mr.Samdhani and Mr.Madon, that ssp 3 CHS 421 of 2011 if the said amendments are allowed, it would result in the alteration of the nature of the suit. It is further submitted by the learned Senior Counsel that the reliefs sought by way of of prayer clauses C-1 and C-2 are ex-facie barred by the law of limitation. It is the submission of the learned Senior Counsel that infact the present suit as filed, is not maintainable in view of the provisions of Order XXIII Rule 4 of Code of Civil Procedure in view of the withdrawal of the earlier Suit being 931 of 1971. 4. Having heard the learned Counsel for the plaintiff and the contesting defendants, in my view, the plaintiff is not entitled to the reliefs claimed in the chamber summons. In the context of the submissions made by the learned Senior Counsel appearing for contesting defendants, it would be apposite to consider the reliefs sought in the above suit. Prayer clause (a) which is the substantive relief is reproduced herein under : - “(a) This Hon’ble Court be pleased to declare that the order dated 4th August, 1992 passed by the Hon’ble Court in O.O.C.J. Suit No.931 of 1971 permitted withdrawal of the said suit on the purported grounds of “settled out of Court” is fraudulent, collusive, void and illegal and the plaintiff as well as the defendant No.14 are not bound by the same; 5. Rest of the prayers which are sought by the plaintiff in the above suit would be contingent upon prayer clause (a). It would also have to be borne in mind whether the plaintiff would be entitled to the other prayers sought, if the suit is decreed in terms of prayer clause (a), as ssp 4 CHS 421 of 2011 in that eventuality, suit No.931 of 1971 would stand revived. It would also be apposite to consider the relief sought in the said suit No.931 of 1971. Relevant prayer clauses in the said suit are prayers (a), (b), (c) and (e). A perusal of the said prayers therefore, indicate that the prayers in the said suit, run along with the same lines as prayer in the instant suit, as the said Suit No.931 of 1971 was filed by the plaintiff on being allegedly deprived of her right to 50% of the share in the suit property. The said suit was simplicitor withdrawn on 5-08-02 in view of the out of court settlement. Hence, the question that begs an answer would be whether the instant suit i.e. the present suit would be maintainable in view of the provisions of Order XXIII Rule 4 of the Code of Civil Procedure. However, that is another matter and the same would be considered at the trial of the present suit. The said fact however, is necessary to be borne in mind in the context of the amendments sought by the plaintiff in terms of the Schedule. 6. There is merit in the submission of the learned Senior Counsel appearing for the contesting defendants that considering the main substantive relief sought in the present suit, the amendment if allowed, would travel beyond the relief sought and would change the nature of the suit which is at present being one which challenges the withdrawal of the suit on the basis of it being settled out of Court, to one challenging ssp 5 CHS 421 of 2011 documents which are mentioned in the prayer clauses of the chamber summons, which are sought to be incorporated by way of amendments. 7. In so far as the prayers which are now sought to be introduced, on a perusal thereof it can be ex-facie seen that the challenge to the various documents i.e. development agreement, title certificate dated 01-11-2004 etc., is at this point of time barred. Reading of the prayers now sought to be introduced by way of amendments interalia discloses that the prayers are now also being sought in respect of matters in respect of which proceedings are pending before the concerned statutory authorities. This is in respect of prayer clauses (c-i) and (c-ii). By prayer clause C-1 (vi), the title certificate issued by Vimla & Co., is sought to be challenged. 8. In my view, said amendments do not also satisfy the test laid down by the Apex Court from time to time that only such of the amendments can be allowed if they are necessary for determination of the issues that arise in a suit and if they are not ex-facie barred by limitation. As indicated above, the amendments suffer from three infirmities as mentioned hereinabove, namely that they would have effect of altering the nature of the suit, that considering the substantive prayer sought in the suit, they are not necessary and that they are ex-facie barred by limitation. In that view of the matter, no relief can be granted in so far as the ssp 6 CHS 421 of 2011 amendments are concerned. The Chamber Summons is accordingly rejected. ( R.M.SAVANT, J. )