ASN 1 CHS-435.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 435 OF 2011 IN SUIT NO. 4162 OF 1995 Shri. Roop Narain Sha and anr. ..Plaintiffs. Vs. Smt.Smita R. Sah and anr. ..Defendants. Mr.Y.V.Divekar i/by M/s. Divekar & Co. for Plaintiffs. Mr. U. Makhija with Mr. Sagar Ghogre i/by Udwadia and Udeshi for Defendant No.1. CORAM : R.M. SAVANT , J. DATE : 18th April, 2011 PC : By the above Chamber Summons defendant No.1 seeks to amend the written statement in terms of prayer clauses (a) and (b).The learned counsel Mr. Makhija appearing for the applicant at the out set states that he is not pressing the prayer clause (a). In so far as prayer clause (b), defendant No.1 seeks amendment in terms of the Schedule, except clause Nos.2, 7, 8 and 10 of the Schedule. The applicant therefore, prays for amendment in terms of clause Nos. 1,3,4,5,6,9,11,12 and 13. The learned counsel for the applicant also fairly states that the applicant does not desire to annex the exhibits to the Schedule as exhibits to the written statement but would produce them at the appropriate time i. e. at the time of filing of the affidavit of evidence that would be filed on behalf of defendant No.1. ASN 2 CHS-435.sxw 2 In the affidavit in support, the reasons why the amendments are being moved at this stage are mentioned. It is the case of the applicant that in spite of inspection being sought by numerous letters addressed from the year 1995 upto 14.2.2011, the inspection as sought by the defendants has not been given by the plaintiffs. The said letter dated 14.2.2011 is addressed by the Advocate for the defendants to the Advocate for the plaintiffs was replied by letter dated 15.2.2011 by the Advocates for the defendants. It was mentioned in the said letter that except Sr. Nos. 17,18,19, 22,23 and 24 in the letter dated 14.2.1011 of the Advocate for the defendants, the plaintiffs have not referred or relied upon any other document mentioned in the said letter. Therefore, according to the defendants, it is the case of the plaintiffs that the other documents which are mentioned in the letter dated 14.2.2011 are not connected with or relevant to the subject matter of the present suit and that the applicant was therefore, not entitled to seek their inspection. The fulcrum of the amendments as sought is the declaration dated 23.3.1963 which is mentioned in the affidavit in reply filed by plaintiff No.1 to Chamber Summons No.825 of 1995. In the said reply plaintiff No.1 has categorically admitted that in the year 1963 he under a declaration dated 23.3.1963 has created a separate entity in his HUF and voluntarily threw certain properties standing in his name, which were mentioned in the said declaration in the common hotchpotsh of the HUF consisting of himself, his four minor sons and his wife. It appears that plaintiff No.1 had stated that he had created HUF in the name of Roop Narain Sah HUF. ASN 3 CHS-435.sxw 2 It is required to be noted that the above suit has been filed by the plaintiffs seeking declaration that plaintiff No.1 alone is the legal and rightful owner of the flat situated on the 5th floor and a garage in the building known as Meherina Co-op Housing Society Ltd., situated at Plot No.C-51, Bombay-200 026. It is also required to be noted that in the written statement the defendants have taken a defence that the property in question belongs is an HUF property and therefore, plaintiff No.1 alone cannot lay a claim to it. The issues in the above suit have been framed by order dated 10.2.2011 and in so far as Issue Nos.1,2,3 and 4 are concerned which revolves around the fact that the property is joint Hindu family property, thus no burden is cast upon the defendants. 3 The above chamber summons is opposed by the plaintiffs inter alia on the ground that the application is belated and that if the amendments are allowed it would protract the trial. It is further contended that if the amendment is allowed it would lead to the defendants in taking conflicting stands and that, it cannot be allowed at this stage as the trial has already began. 4 The learned counsel appearing for the plaintiffs relies upon a judgment of the Apex Court reported in AIR 2009 SC 1433 in the matter of Vidyabai and others Vs. Padmalatha and another, Paragraphs 8 and 9 of the said report is material and is reproduced hereinunder :- ASN 4 CHS-435.sxw “8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfil the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of proceeding.’ 9. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of the dictionary meaning of the terms “trial” and “commencement” to opine : 19. It would, therefore, be clear that trial means act of providing or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.” 5 Having heard the learned counsel for the parties, I am of the view that case for grant of chamber summons is made out. ASN 5 CHS-435.sxw It is pertinent to note that it is the case of the defendant No. 1 in the written statement that the property in question is the property of HUF and what can now sought to be introduced by the amendment is thus amplification of that case of the defendants. It is not as if the defendants have given up the said case and now trying to expose totally different case than one in the written statement. It is well settled that in so far as amendments of the written statement are concerned, different considerations apply vis-a-vis the amendments to the plaint. The defendants are also entitled to take contrary and conflicting pleas as long as they are not mutually self destructive. It is pertinent to note that, in spite of numerous letters addressed by the Advocates for the defendants to the Advocates of the plaintiffs, right from 1995 no inspection is granted by the plaintiffs to the defendants and therefore, ultimately by letter dated 14.2.2011 the defendants, as it were have given the final notice, in reply to the said letter the defendants by Advocate’s letter dated 15.2.2011 stated that they would be relying only upon certain documents which were mentioned in the letter dated 14.2.2011 of the Advocate of the defendants. The defendants are therefore, seeking to incorporate pleadings so as to bring on record the documents which were mentioned in the letter dated 14.2.2011 but which were not going to be produced by the defendants. The evidence that would be adduced pursuant to the pleadings which would be incorporated by virtue of the amendment would amplify the case of the defendants that it is a property belonging to the HUF. It is well settled that merely because there is a delay in filing application for amendment the same cannot be a ground for rejection of the said application. The ASN 6 CHS-435.sxw application can only be rejected if the same has no effect of a totally contrary case being put up, a plea is sought to be introduced which is barred by limitation and has the effect of prejudicing the case of the other party. As indicated above, the consistent case of the defendants has been that the property in question is the HUF property and what is sought to be done is only support the said case as originally taken in the written statement. Reliance placed by the learned counsel of the plaintiffs on the judgment of the Apex Court reported in AIR 2009 SC 1433, in my view is misplaced in the facts and circumstances of the present case, firstly it is required to be noted that the suit is of the year 1995 and that the amendments to the C.P.C. would not be applicable. Be that as it may, even if, it is assumed that the said amendments are applicable for the reasons mentioned above, the amendments are not of such a nature that the same if allowed are likely to cause prejudice to the plaintiffs. 6 In my view, it is also well settled that amendments can be allowed if it or they are necessary for complete determination of the issues that arise before the Court. Applying the said criterion, the grant of reliefs in the above chamber summons would be justified. In that view of the matter, chamber summons is allowed in terms of prayer clause (b) to the extent herein above. Interest of justice requires the applicant pay costs of Rs.3000/- to be deposited with the Maharashtra Legal Service Authority within a period of four weeks from date. Amendments to be carried out within a period of four weeks from date and be served upon the plaintiffs within two weeks thereafter. Place the ASN 7 CHS-435.sxw suit for directions after ensuing summer vacation on 13.6.2011 on which date the orders regarding filing of affidavit of evidence and list of documents will be passed, as also framing of additional issue. 7 Shri. Makhija learned counsel appearing for the defendant No.1 states that the defendant No.2 would adopt the written statement of defendant No.1 as would be amended in the light of the order passed today. R.M. SAVANT, J.