Dilip Dwarkadas Udeshi And Ors vs M/S. Elite Associates
2022 Latest Caselaw 1110 Bom

                                                          10.8700.21 WP.doc

ISM
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CIVIL APPELLATE JURISDICTION

                      CIVIL WRIT PETITION NO. 8700 OF 2021

      DILIP DWARKADAS UDESHI AND ORS                ....PETITIONERS

              V/s.

      M/S. ELITE ASSOCIATES                         .....RESPONDENT

      Mr. Ferzana Behramkamdin a/w Bharti Bhansali i/b FZB Associates
      for the Petitioner


                        CORAM :    NITIN W. SAMBRE, J.

                        DATE:      JANUARY 31, 2022.

      P.C.:

      1)      Heard. Present petition is by the Defendants to a Suit for

declaration and permanent injunction. Respondent-Plaintiff took out

chamber summons seeking amendment whereby insertion of the

claim for mens profit and also addition/replacement of trustees came

to be allowed vide impugned order dated 16/11/2021 passed by City

Civil and Sessions Court, Greater Bombay.

2) Counsel for the Petitioner-Defendant would urge that by way of

permitting the amendment, the Court has permitted the Plaintiff to

10.8700.21 WP.doc

bring time barred claim of mens profit within limitation. She would

further urge that Court below has failed to appreciate the very

principle of Order II Rule 2 of Code of Civil Procedure, 1908 as when

the Suit was initiated, Respondent-Plaintiff has chosen not to come

out with a prayer for recovery of mens profit. As such, by relying on

the Judgment of the Apex Court in the matter of Shiv Kumar Sharma

V/s. Santosh Kumari1 and the Judgment of this Court in the matter

of Avinash Karnik V/s. Ajit Karnik and Others 2 it is claimed that

amendment is granted de-hors the provisions of law.

3) I have appreciated contentions raised in the light of law laid

down by the Courts in the aforesaid Judgments and also nature of

amendment granted.

4) In my opinion, Respondent-Plaintiff had every right to claim

mens profit provided such claim is made within limitation. To that

extent claim of Respondent-Plaintiff seeking inquiry in the matter of

mens profit and recovery of the same is quite justified.

5) With an observation that the Trial Court while deciding the Suit

claim will be sensitive to the issue of limitation as to the period

1 (2007) 8 Supreme Court Cases 600 2 2019 SCC OnLine Bom 1057

10.8700.21 WP.doc

within which the plea for inquiry and recovery of mens profit should

be entertained, I hardly see any reason which warrants interference

in extraordinary jurisdiction.

6) Petition as such fails, stands dismissed.

[NITIN W. SAMBRE, J.]

IRESH SIDDHARAM MASHAL

Digitally signed by IRESH SIDDHARAM MASHAL Date:

2022.01.31 16:39:58 +0530