- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS No. 18 OF 2009 IN SUIT No. 2333 OF 1987 Kavery Construction Pvt. Ltd. ... Plaintiff Vs. Development Authority & Ors. ... Defendants *** Mr. Shekhar Shetye a/w Ms. Nina Kapadia i/b Pandya Gandhi & Co., for the Plaintiff. Mr. K. J. Presswala a/w Mr. P. N. Singh i/b Vyas & Bhalwal, for Defendant No.2. *** CORAM : S. J. VAZIFDAR, J. DATE : SEPTEMBER 22, 2009. PC :- 1. This is plaintiff’s Chamber Summons, seeking to amend the plaint. 2. The proposed amendment challenges an agreement to lease dated 6th October 1988, entered into between defendant No.1 on the one hand and defendant No.2 on the other. It is submitted that the said agreement of lease is illegal inter-alia in view of the fact that defendant No.1 had already agreed to sell the property which is a subject matter thereof, to the plaintiff. The suit itself was - 2 - for specific performance of the said agreement between the plaintiff and defendant No.1. 3. Defendant Nos. 2 and 3 were impleaded pursuant to an earlier order. When the suit was filed, the said agreement of lease had not been executed. The suit was filed on 7th August 1987. However, it is true that plaintiff came to know about the same when the written-statement was filed by defendant No.2 in the year 1998 itself. 4. In the circumstances, there is considerable delay in taking out this Chamber Summons. However, a mere delay by itself would not disentitle a party to the amendment. 5. Mr. Presswala relying upon the judgment of the Supreme Court in the case of – Vidyabai and Ors. Vs. Padmalatha & Anr. [(2009)2 Supreme Court Cases 409], submitted that the date on which the issues are framed is the only relevant date for the purpose of the proviso to Order VI, Rule 17 of the Civil Procedure Code. However, the Supreme Court has expressly stated that the filing of an affidavit in lieu of examination-in-chief of the witness would amount to commencement of proceedings within the meaning of that expression in the proviso. Even the observations of the Supreme Court in the case of – Kailash v. Nanhku [3(2005) 4 SCC 480] are to the effect that “in a civil suit, the trial begins when the issues are settled and the case is set down for recording of evidence”. In the present case issues were settled but the case has - 3 - not been set down for recording of evidence and admittedly the affidavit-in-lieu of examination-in-chief of the first witness has not been filed. 6. However, considering the nature of the reliefs sought, the amendment cannot relate back to the date of filing of the suit or even to the date of the said lease. The amendment shall operate only from the date of the Chamber Summons. 7. In the circumstances, the Chamber Summons is made absolute in terms of prayer Clause (a) subject to the above clarification. The amendment to be carried out within two weeks.