HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1670 OF 2009 IN SUIT NO.3206 OF 1999 Prema Jagannath Chodankar & Ors. ...Plaintiffs vs. Jagdish Shankar Sawant & Ors. ...Defendants Mr.V.Y.Sanglikar for the plaintiffs Mr.Suresh Rajeshwar for defendant nos.1 and 2 Mr.Phiroz Colabawala a/w Ms Samidha Vedpathak i/b M/s.Manksha & Sethna for defendant no.3 CORAM : A.S.Oka,J. DATE : NOVEMBER 9,2009 P.C. 1 Heard the learned counsel appearing for the plaintiffs in support of this chamber summons taken out for amendment of the plaint. I have also heard the learned counsel appearing for the first and second defendants as well as the learned counsel appearing for the third defendants. The first and second defendants have opposed the chamber summons. 2 The plaintiffs filed the suit inter alia for a declaration that the first and third defendants are trespassers in respect of the suit premises more particularly described in the plaint. The third defendants are developers. They claimed that they have been appointed as the developers of the property in which the suit premises are situated. There is a prayer in the suit for decree for possession against the first and second defendants. 3 In the affidavit-in-support of the chamber summons it is pointed out that to the notice of motion for interim relief taken out by the plaintiffs in the year 1999, the third defendants did not file any reply. The third defendants filed its written statement, but did not furnish a copy thereof to the plaintiffs. On 30th July 2009 the learned Prothonotary and Senior Master pointed out that the third defendants had filed a written statement. The Advocates for the third defendants forwarded a copy of the written statement to the plaintiffs along with covering letter dated 14th August 2009.On19th July 1999, this court on the notice of motion taken out by the plaintiffs passed an ad- interim order restraining the 3rd to 11th defendants from entering into any agreement with the first and second defendants for development of the property in which the suit premises are situated. In the affidavit-in-support it is pointed out that in the written statement filed by the third defendants, a stand was taken that the said defendants had entered into an agreement with the first and second defendants on 25th December 1997. It is contended in the affidavit- in -support that the said case was made out to circumvent the ad- interim order passed on 19th July 1999 and therefore, an amendment was sought to the plaint for contending that the agreement dated 25th December 1997 set up by the third defendants was a sham agreement and it is a back dated agreement. An assertion was sought to be made that the said agreement dated 25th December 1997 was not binding on the plaintiffs. Additional prayers were sought to be incorporated. The first prayer which is sought to be incorporated is for a declaration that the agreement dated 25th December 1997 was not binding on the plaintiffs. A prayer for possession was also sought to be added against the third defendants. 4 The learned counsel appearing for the plaintiffs submitted that the amendment is required for dealing with contentions raised in the written statement regarding execution of the agreement dated 25th December 1997. He submitted that a copy of the written statement was made available to the plaintiffs in August 2009 and therefore the said amendment could not be made earlier. The learned counsel submitted that the amendment has been moved immediately after the plaintiffs became aware of the alleged agreement dated 25th December 1997. He submitted that the proposed amendment does not change the nature of the suit. 5 The learned counsel appearing for the first and second defendants submitted that as pointed out in the reply of the first defendant, the proposed amendment was barred by limitation. He submitted that the averments made regarding execution of agreement dated 25th December 1999 are in the written statement filed on 23 November 2006 and the present chamber summons has been taken out in the year 2009. He submitted that apart from the delay, the amendment is barred by limitation. He submitted that there is a gross unexplained delay in filing the chamber summons. The learned counsel appearing for the third defendants relied upon reply filed by the third defendants and submitted that in the said reply the director of the third defendants has stated that the third defendants will hand over tenement in the reconstructed building either to the plaintiffs or to the first and second defendants as may be directed by this court. 6 I have given careful consideration to the submissions. The specific case of the plaintiffs is that written statement filed by the third defendants was served to them along with covering letter dated 14th August 2009. A copy of letter dated 14th August 2009 sent by the advocates for the third defendants to the plaintiffs is annexed to the affidavit in support. The said letter shows that a copy of the written statement was served to the plaintiffs on 14th August 2009. The first and second defendants have not made out any specific case that the written statement was served to the plaintiffs earlier. There is nothing placed on record to show that at any point of time prior to August 2009 ,a copy of the written statement was served to the plaintiffs or their advocate. Thus it can be said that the Plaintiffs became aware of the alleged agreement dated 25th December 1997 for the first time in August 2009 when a copy of the written statement of the third defendants was served to the advocate for the plaintiffs. Therefore ,it cannot be said that there is a delay in taking out the chamber summons which was filed in October 2009. 7 Whether the prayers sought to be added by the amendment are barred by limitation or not is an issue which can be decided only after evidence is adduced. As of today it is not possible to come to the conclusion that the proposed amendment is barred by limitation. In any event, notwithstanding the grant of amendment, issue of bar of limitation always remains open which can be agitated by filing additional written statement. The plaintiffs have taken out this chamber summons in October 2009 after they became aware in August 2009 of an agreement tried to be set up by the third defendants. The proposed amendment does not change the nature of the suit. Therefore ,the same deserves to be allowed. 8 Hence, I pass following order: Chamber Summons is made absolute in terms of prayer clause (a). Amendment be carried out within six weeks. Within a period of eight weeks from the date on which amended copy of the plaint is served to the defendants, additional written statement, if any, shall be filed by the defendants. JUDGE