Mr. Rashid Rustumji Byramji Thru ... vs Palm Grove Beach Hotels Pvt. Ltd
2021 Latest Caselaw 3379 Bom

                                                                                  WP-11841-19.doc

BDP-SPS


  Bharat
  D.
  Pandit                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed
  by Bharat D.
  Pandit
  Date:
  2021.02.23
                                         CIVIL APPELLATE JURISDICTION
                                       WRIT PETITION NO. 11841 OF 2019
  18:26:51
  +0530




                                                     A/W
                                     INTERIM APPLICATION NO.2334 OF 2019


                     Mr. Rashid Rustumji Byramji & Anr.          ..... Petitioners.
                                V/s
                     Palm Grove Beach Hotels Pvt. Ltd.           ..... Respondent.
                     ----
                     Ms. Sumi Soman for the Petitioners.
                     Mr. Chetan Kapadia a/w Mr. Aditya Shriralkar a/w Ms. Vidhi Shah
                     a/w Ms. Sangeeta Lanjewar for the Respondent.
                     -----

                                          CORAM: NITIN W. SAMBRE, J.

                                           DATE:     FEBRUARY 23, 2021

                     P.C.:-

                     1]       This Petition is by the Plaintiffs to Special Civil Suit No.1509 of

2013 in which Application-Exhibit-29 moved for carrying out

amendment in the plaint under Order VI Rule 17 of the Civil

Procedure Code came to be rejected vide impugned order dated

8/7/2019 by the Joint Civil Judge, Senior Division, Pune.

2] The learned Counsel for the Petitioners/Plaintiffs while

questioning the said order would invite attention of this Court to the

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nature of claim made in the plaint and also the pleadings in the

application for amendment of the plaint. According to her, the

amendment is necessary so as to take the decree to its logical end as it

is the perception of the Petitioners/Plaintiffs that if the decree is

passed, as is claimed in the plaint, same will be a paper decree as the

Plaintiffs will not be able to execute the same, as suit property is

already developed and third party rights are created by the

Defendants. The learned Counsel would urge that in the facts and

circumstances of the case, amendment is verymuch warranted and

same needs to be allowed as the effective trial in the suit is yet to

commence and the Defendants will get an opportunity to meet the

case of the Plaintiffs even after the grant of amendment. The learned

Counsel would submit that amendment sought is verymuch imperative

for effective adjudication of the claim made and the same is bonafide

in nature. According to her, by rejecting the prayer for amendment

injustice is caused to the Petitioners/Plaintiffs. She submits that issue

of limitation can be gone into by the Court at appropriate stage of the

proceeding as the said issue is a mixed question of fact and law.

3] Relying on the judgment of Apex Court in the matter of L.J.

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Leach and Co. Ltd and another vs. Messrs Jardine Skinner and Co.

reported in AIR 1957 SC 357, the submissions of the learned Counsel

for the Petitioners are, claim for damages in the facts of the case is

very much required. While drawing support from para 16 of the said

judgment, the learned Counsel for the Petitioners would submit that in

the facts and circumstances of the case in hand, the consideration as

regards claim being barred by limitation is required to be outweighed,

particularly in view of existence of special circumstances such as

advance age of the Petitioners/Plaintiffs and the nature of fraud

practiced by the Respondents.

4] While countering the said submissions, Mr. Chetan Kapadia,

learned Counsel appearing on behalf of the Respondents would urge

that if at the face of the claim as is sought to be brought on record by

way of amendment, it can be inferred that same is barred by

limitation, the Court should not grant such amendment. According to

him since the issues are framed and trial has already commenced, this

Court should reject the writ petition by upholding the order of the

Trial Court. So as to substantiate his contention, he has relied on the

following judgments in the matters of (1) Revajeetu Builders and

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Developers vs. Narayanaswamy and Sons and Ors reported in 2010(6)

ALT19(SC) (2) Mridula Ghosh and Ors. vs. Mitra & Ghosh Publishers

Company Pvt. Ltd and Ors reported in 2002(2) CLJ 606, (3) South

Konkan Distilleries and Anr vs. Prabhakar Gajanan Naik and

Others reported in (2008) 14 SCC 632, (4) Mohinder Kumar Mehra

vs. Roop Rani Mehra & Ors.[MANU/SCOR/51288/2017] and (5) M.

Revanna vs. Anjanamma (Dead) by L.Rs. and Ors reported in AIR

2019 SC 940. It is further contended by Mr. Kapadia that issue of

limitation is not an arguable issue, as, at the face of it, it can be

inferred that suit claim which is sought to be inserted by way of

amendment is barred by limitation and as such the judgment in the

case of L.J. Leach and Co. Ltd and another vs. Messrs Jardine

Skinner and Co. reported in AIR 1957 SC 357 on which reliance is

sought to be placed by the learned Counsel for the Petitioners will be

hardly of any assistance.

5] Considered rival submissions.

6] In the suit in question, Trial Court has already framed issues at

Exhibit-25 on 12/10/2017, which read as under:-

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"1. Whether plaintiffs prove that defendant utilised the FSI in respect of 3.5 acres of land out of suit property, more particularly described in para no.1, which was retained by plaintiffs in view of memorandum of understanding dated September 1988?

2. Whether plaintiffs are entitled for relief of declaration as prayed for?

3. Whether suit is within limitation?

4. Whether suit is bad for non-compliance of Order 7 Rule 3 CPC?

5. Whether plaintiffs are entitled for perpetual injunction?

6. What order and Decree?"

7] As regards whether suit claim is within limitation, is an issue

which is already framed by the Court. Once the Trial Court is already

going to decide the issue as regards whether the suit claim is within

limitation or not, the fact remains that even the amended pleadings if

are hit by law of limitation can be looked into while deciding Issue

No.3. Apart from above, it is required to be noted that by way of

amendment, Petitioners are trying to incorporate the relief which is

ancillary to the reliefs already claimed in the plaint. It can be noticed

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that in the amendment application, the Petitioners/Plaintiffs have

specifically given explanation as to why the amendment is necessary

that is to say that if decree is passed based on original claim in the

plaint, the said decree will be inexecutable because of the conduct of

the Respondents/Defendants of creating third party rights in the suit

property.

8] The judgment in the case of L.J. Leach and Co. Ltd on which

reliance is placed by the learned Counsel for the Petitioner is prior to

amendment to the Code of Civil Procedure. However, principle

underlying the grant of amendment laid down therein is required to be

appreciated.

9] It is the case of the Petitioners/Plaintiffs that there are certain

circumstances which on merit will outweigh the claim of the

Respondents/Defendants that the suit is barred by limitation.

10] Apart from above, in the judgments which are relied upon by the

learned Counsel for the Respondents, though it has been held that

once trial in the suit has commenced, law contemplates that

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amendment should not be granted in a routine manner, however, in

exceptional cases, amendment can be allowed. If the amendment is

not granted, as is prayed by the Petitioners, substantial prejudice and

injustice would be caused to the Petitioners as their claim for getting

benefits out of their own property will be denied. In para 63 of the

judgment in the matter of Revajeetu Builders and Developers cited

supra, the Apex Court has observed that the Courts have very wide

discretion in the matter of amendment of pleadings. However, the said

powers are required to be exercised judiciously.

11] This Court is also required to be sensitive to the fact that trial in

the suit though has commenced by framing the issues, the parties,

however, are yet to enter into the witness box and that being so, even

if amendment is granted, no prejudice at this stage is likely to be

caused to the Respondents. Rather, more prejudice would be caused

to the Petitioners/Plaintiffs in case the amendment is not allowed. As

such, in my opinion, the order impugned is liable to be quashed and

set aside and prayer for amendment as is prayed in Exhibit-29 needs to

be allowed.

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12] In the backdrop of aforesaid observations, the order impugned

dated 8/7/2019 passed by the Joint Civil Judge, Senior Division, Pune

below Exhibit-29 in Special Civil Suit No.1509 of 2013 is hereby

quashed and set aside. The said Application-Exhibit-29 stands

allowed, subject to payment of costs of Rs 25,000/- to the

Respondents/Defendants. The costs be deposited in the Trial Court

within a period of four weeks from today, which the

Respondents/Defendants would be entitled to withdraw.

13] It is after deposit of costs only, Petitioners will be entitled to

carry out the amendment.

14] Petition is accordingly disposed of in the aforesaid terms. As a

consequence of disposal of Petition, pending Interim Application does

not survive and the same is also disposed of.

( NITIN W. SAMBRE, J. )