1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1154 of 1974 WITH CRR NO. 264 OF 2008 WITH CRE NO. 1154 OF 1974 WITH CRR NO. 264 of 2008 IN SUIT NO. 1154 OF 1974 with CHS NO. 715 OF 2009 IN SUIT NO. 1154 OF 1974 The Trustees of the Port of Bombay ...Plaintiffs v/s. J.R.Nazir & ors. ...Defendants Mr. U.J.Makhija i/b. Mulla & Mulla for the plaintiffs. Mr. D.D.Madon, Sr. Counsel a/w. Aliabbas Dehliwala i/b. Ramchandra Yadav for the defendants. Mr. Bharat Yadav for Society in C.R. Report. CORAM:- A.M.KHANWILKAR, J DATED:- June 9, 2009. P.C. Heard Counsel for the parties. 2 2. By this Chamber Summons plaintiffs essentially seek to amend prayer clause (c) in the plaint. The original prayer clause (c) in the plaint reads thus: “(c) That the Defendants jointly and severally be ordered and decreed to pay to the Plaintiffs further compensation for the use and occupation of the said premises at the rate of Rs. 7566.43 per month from the date of the suit till 31st July 1981 and if vacant possession is not delivered to the Plaintiffs by 31st July 1981 then at the rate of Rs.9433.18 per month from 1st August 1981 till vacant possession is given to the Plaintiff; together with way leave charges at the rate of Rs. 11 per month.” 3. By way of amendment, the plaintiffs intend to pray for following relief as per the amended prayer clause (c). “(c) that the Defendants be ordered and decreed to pay to the Plaintiffs mesne profits in respect of the suit premises under Order XX Rule 12 of the Code of Civil Procedure from the date of the suit until Defendants hand over quiet, vacant and peaceful possession of the said premises to the Plaintiffs.” 4. This application is vehemently resisted by the defendants on the argument that this Court has no jurisdiction to allow amendment as prayed keeping in mind provisions of Order VI Rule-17 of Civil Procedure Code. To buttress the submission, reliance is placed on the decision of the Apex Court in the case of Vidyabai & ors. v/s. Padmalatha & anr. reported in 2009 (1) SC 302. Indeed, the legal position expounded in the said 3 decision would apply to a case where the amendment of pleadings is sought after the commencement of the trial. In the present case the issues have been framed in the year 1986 which position is not in dispute. The fact remains that the present suit is being tried by the High Court on the original side. Even if the abovesaid provisions cannot be brushed aside, in my opinion, the nature of relief claimed in the present application is essentially in the nature of requesting the Court to permit the plaintiffs to defer their claim with regard to damages and allow them to claim mesne profits after the decree is passed, which issue can be investigated as per the provisions of Order-XX Rule-12 of Civil Procedure Code. In that sense, it is not amendment of pleading stricto senso but praying for limited relief of allowing the plaintiffs to seek relief of mesne profit instead of damages as claimed in terms of original prayer clause (c) of the plaint. In my opinion, no prejudice would be caused to the defendants if the plaintiffs are permitted to ask for relief of mesne profit after the suit is decreed. That may perhaps speed up the process of conclusion of trial (in relation to Suit of 1974) as the plaintiffs then would not be required to adduce evidence on the issue of claim of damages during the pendency of the suit to substantiate original prayer clause (c) of the plaint. Thus understood, in the interest of justice, in my opinion, the Chamber Summons filed by the plaintiffs deserves to be allowed in terms of prayer clause (b). 5. I am inclined to grant this relief as I find force in the submission of the plaintiffs that the amended relief is necessitated after the exposition of the Apex Court in the case of Jamshed H. Wadia v/s. Mumbai Port Trust reported in 2004 (3) SCC 214. Indeed, Counsel for the Defendant would 4 argue that there is unexplained delay in filing the present Chamber Summons. In as much as, the issues were framed as back as in 1986. Besides, it is noticed that the decision in Jamshed Wadia’s case has been rendered in the year 2004, whereas the present Chamber Summons has been taken out only recently in April 2009. Nevertheless, in my opinion, in the interest of justice, the Chamber Summons deserves to be allowed for the simple reason that no prejudice would be caused to the defendants if the plaintiffs are allowed to press for relief of mesne profit after the suit is decreed in lieu of claim for damages as is already prayed. 6. Counsel for the Defendant submits that the plaintiffs having prayed for specific relief in terms of prayer clause (c), it is not open to the plaintiffs to ask for relief of mesne profit at a later stage. However, in my opinion, there is nothing in law to preclude the plaintiffs to seek relief of mesne profit after the suit is decreed in lieu of or in substitution of relief of damages in terms of prayer clause (c), if the Court were to so permit. If it is so, even for that reason the Chamber Summons deserves to be allowed as no prejudice will be caused to the defendants and more so the process of trial of the suit will be expedited. In that the Counsel for the Plaintiffs stated across the bar that if the amendment as prayed was to be granted, the plaintiffs may close their evidence as no further evidence would be necessary. 7. Accordingly, Chamber Summons is made absolute. Amendment be carried out within one week from today. 8. The Suit be now placed on 6th July, 2009 under caption `directions’. 5 9. At this stage Counsel for the Defendants seek stay of operation of this order for a period of four weeks to enable the Defendants to carry the matter in appeal. That request is accepted. (A.M.KHANWILKAR, J)