Sampooran Singh Gulzar vs Western India Corporation And 2 ...
2023 Latest Caselaw 3612 Bom

2023:BHC-OS:2831

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               ORDINARY ORIGINAL CIVIL JURISDICTION
                               INTERIM APPLICATION (L) NO.6545 OF 2022
                                                IN
                                        SUIT NO.529 OF 2013

            Sampooran Singh Gulzar,
            Age 79 years,
            Bungalow No.1 "Boskyana",
            Pali Hill Nagris Dutt Road,
            Bandra (W), Mumbai - 400 050.                  ...        Applicant

                    In the matter between

            Sampooran Singh Gulzar,
            Age 79 years,
            Bungalow No.1 "Boskyana",
            Pali Hill Nagris Dutt Road,
            Bandra (W), Mumbai - 400 050.                  ...        Plaintiff

                    versus

            1.      Western India Corporation,
                    2B, Sindhu House, 3/5 Nanabhoy Lane,
                    Flora Fountain, Mumbai - 400 001.

            2.      The Pali Hill Panchsheel Co-op.
                    Housing Society Ltd., Pali Hill,
                    Nargis Dutt Road, Bandra (W),
                    Mumbai - 400 050.

            3.      Mahesh Notandass Jagwani,
                    Bungalow No.2, Pali Hill,
                    Nagris Dutt Road, Bandra (W),
                    Mumbai - 400 050.

                    and

            3.      Ashok K. Bhavnani,
                    Residing at 36, Shangrila,

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       Colaba P.O., Colaba Mumbai - 400 005.

4.     Jairam C. Raheja,
       Residing at Prem Court, Peddar Road,
       Bombay - 400 026.

5.     Satram Kriplani,
       Residing at Pushap Vihar, Building No.3,
       Colaba, Mumbai - 400 005                        ...        Respondents/proposed
                                                                Defendant Nos.4, 5 and
                                                                6).


Mr. Nusrat Shah with Ms. Ema Almeida, Mr. Kevin Gala, Ms. Samaa Saha, Ms.
Archana Jha i/by Mr. Naazish N. Shah for Applicant/Plaintiff.
Mr. Snehal K. Shah, Senior Advocate with Mr. Swanand Ganoo, Ms. Samridhi Lodha
i/by Kanga and Co., for Defendant No.2.

                        CORAM:       N.J.JAMADAR, J.

                        RESERVED ON               : 12 DECEMBER 2022
                        PRONOUNCED ON             : 12 APRIL 2023

JUDGMENT :

1. The Applicant/Plaintiff has preferred this Application seeking

permission to add Respondent Nos.3 to 5 as party Defendant Nos.4 to 6 to the Suit

and amend the Plaint in accordance with the Schedule of amendment appended to the

Application, purportedly under the provisions of Order VI Rule 17 of the Code of Civil

Procedure, 1908 ('the Code')and Sections 22 and 26 of the Specific Relief Act, 1963

('the Act, 1963').

2. Since the application for amendment pre-dominantly adverts to the legal

position which governs the prayer for amendment of the pleadings, particularly in a

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suit for specific performance, in addition to asserting that the proposed amendment is

in the nature of an elaboration of the case pleaded by the Plaintiff by providing more

details in respect of the facts already brought on record and further explanation and

elaboration of the documents which are already on record, it may be necessary to note

in brief the case originally pleaded by the Plaintiff.

2.1 The Plaintiff asserts, M/s. Western India Corporation ('M/s. Western')

- Defendant No.1 is a developer and builder. The Defendant No.1 had developed

three properties on the land bearing C.T.S.Nos.C/1352, C/1353, C/1354 and C/1355

situated at Pali Hill, Bandra (W), Mumbai admeasuring 2199.9 sq. meters, namely, two

bungalows and a building consisting of ground plus six floors. Bungalow No.1 known

as "Boskyana" was built on a piece of land admeasuring 398.86 sq. meters. Bungalow

No.2 was built on a parcel of land admeasuring 378 sq. meters. The Plaintiff claims to

be in exclusive and uninterrupted possession, occupation and enjoyment of bungalow

No.1 ('the suit property') as the owner thereof. The Plaintiff claims to have an

undivided interest and share in the portion of the land appurtenant thereto upon

which the said bungalow of the Plaintiff is built, admeasuring 398.86 sq. meters, out of

the total area of the afore-described land admeasuring 2199.9 sq.meters ('the larger

property').

2.2 Bungalow No.2 was allotted to Mr. Shewak Idanmal Shivdasani,

predecessor in title of Defendant No.3. Third building consisting of 12 flats came to

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be known as Pali Hill Panchsheel Co-op. Housing Society Ltd. - Defendant No.2. All

the three properties constructed by the Defendant No.1 on the subject plot of land

have been separated by walls and each has its own, separate and independent entrance.

2.3 The Plaintiff claims, Defendant No.1 had represented to the Plaintiff and

the predecessor in title of Defendant No.3 that, at that point of time, a separate

conveyance could not be executed in favour of the owners of the bungalows on account

of the difficulties in sub-division of the plot, and also to avail certain benefits and

concessions then available to a co-operative housing society in the matter of payment

of stamp duty and taxes. Defendant No.2 was, the Plaintiff avers, to act as trustee for

owners of Bungalow Nos.1 and 2 and would take necessary steps to sub-divide the

plots and execute conveyance of plot of land appurtenant to bungalow Nos.1 and 2 as

and when it would be practicable and permissible under the governing rules.

2.4 The then office bearers of Defendant No.2, according to the Plaintiff,

had agreed and assured to execute the conveyance in the presence of Mr. Ashok K.

Bhavnani (Respondent No.3 herein), who was then the partner of Defendant No.1.

2.5 After narrating the sequence of events, the Plaintiff claims, Defendant

Nos.1 and 2, especially Defendant No.2 have given a step motherly treatment to the

Plaintiff by taking a partisan stand discriminatory stand against the Plaintiff in not

executing the conveyance in favour of the Plaintiff of the suit property despite

numerous request. In contrasts, Defendant No.2, conveyed bungalow No.2 in favour

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of Defendant No.3 by sub-dividing the larger plot by executing a Deed of Conveyance

dated 4 February 2003. The Plaintiff is entitled to same dispensation.

2.6 Hence, the suit for declaration that the Plaintiff and Defendant Nos.2

and 3 are co-owners of the suit property and as co-owners they have equal rights and

co-ordinate interest in the larger property; the Plaintiff has an undivided interest and

share in the suit property and for a direction to Defendant Nos.1 and 2 to execute a

Deed of Conveyance and/or reversionary rights in respect of the suit property and

also to do all such acts and execute all such instruments, as may be necessary, to

execute the conveyance and in the event of default on the part of Defendant Nos.1 and

2 to effect the sub-division of the larger property and/or to convey the suit property,

an order for executing the same by the Prothonotary and Senior Master of this Court

or some other fit and proper person to be appointed by this Court.

2.7 By way of amendment, the Plaintiff pleaded an alternative case of

perfection of title by adverse possession. Thus, a declaration was also sought in the

alternative that the Plaintiff has acquired ownership over the suit property by way of

adverse possession. A direction was also sought to the revenue authorities to

separately insert the name of the Plaintiff in the record of right of the suit property as

an owner by adverse possession.

3. Defendant No.2 Society resisted the suit by filing written statement on

30 April 2014. Post amendment, additional written statement came to be filed. Issues

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were settled by the Court on 22 June 2018. The Plaintiff filed an Affidavit in lieu of

examination in chief on 24 July 2018. Trial, thus, commenced, and the recording of

evidence concluded on 30 January 2020. Final arguments commenced on 25

November 2021. Defendant No.2's Counsel was in the midst of the submissions when

the instant application for amendment came to be filed on 3 March 2022.

4. By the present application, the Plaintiff proposed to implead Avan

Neelum Gidwani, Respondent No.1 - original holder of the suit property, Mr.

G.G.Vadera - Respondent No.2, a person in whose favour Respondent No.1 had

executed an Agreement for Sale dated 19 February 1973 and Mr. Ashok K. Bhavnani -

Respondent No.3, in whose favour G.G.Vadera - Respondent No.2 had executed an

Agreement on 24 January 1974.

5. Eventually, under a Deed of Indenture dated 9 August 1974, the suit

property came to be conveyed in favour of Defendant No.2 of whom Mr. Jairam C.

Raheja and Mr. Satram Kriplani were stated to be the then office bearers. The said

Deed of Indenture was stated to be executed by Respondent No.1 as the vendor and

the Respondent No.2 as the first confirming party and the Respondent No.3 as the

second confirming party. Before the execution of the said Deed of Indenture, on 30

March 1974 an agreement to develop the suit property came to be executed between

the Defendant No.1 through its partners and Jairam C. Raheja - Respondent No.4, the

then Chief Promoter of Defendant No.2 Society. Under the said agreement,

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Defendant No.1 was to construct a building consisting of ground plus five upper

floors, each floor having a total area of 5000 sq. ft. in accordance with the plans and

specifications proposed by M/s. Premnath and Associates.

6. It would be contextually relevant to note that the Applicant/Plaintiff

sought amendment in the instant application to delete Ms. Avan Neelum Gidwani -

Respondent No.1 and Mr. G.G.Vadera - Respondent No.2 from the array of the

Respondents - proposed Defendants. An Affidavit dated 19 September 2022 was

sworn by the Plaintiff to that effect. Schedule of amendment was also amended to

reflect the deletion of Respondent Nos.1 and 2.

7. The situation which, thus, obtains is that the Plaintiff seeks to implead

Mr. Ashok Bhavnani - Respondent No.3 in the capacity of the then partner of

Defendant No.1 and the person who was instrumental in effecting the transaction and

who made a representation and before whom the Respondent Nos.4 and 5, the office

bearers of Defendant No.2 Society allegedly gave assurances. In addition, the

Plaintiff seeks rectification of the Development Agreement dated 30 March 1974 and

the Deed of Indenture dated 9 August 1974 by asserting that by mutual mistake or

fraud those instruments do not express the real intention of the parties thereto.

8. According to the Plaintiff, the construction of two bungalows i.e. suit

suit property and Bungalow No.2 ought to have been shown in those two instruments

as the Plaintiff and erstwhile owner of Bungalow No.2 had also paid consideration to

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the Defendant No.1 through Respondent No.5. By way of amendment, the Plaintiff

seeks to assert that being the purchaser of the suit property along with the land from

Defendant No.1, the Plaintiff is a joint and co-owner of the suit property along with

Defendant Nos.2 and 3 and, therefore, entitled to seek partition and separate

possession of the suit property by dividing the same by meets and bounds. The

Plaintiff, therefore, seeks to incorporate the prayers of declaration that both the

instruments namely Development Agreement dated 30 March 1974 and the Deed of

Conveyance dated 9 August 1974 are sham, colourable and camouflage documents and

do not bind the Plaintiff, and for rectification of those instruments so as to include two

bungalows namely the suit property and bungalow No.2 therein and for a decree of

partition of the larger property and also decree for separate possession of the suit

property.

9. Affidavit in Reply came to be filed on behalf of Defendant No.2.

Adverting to the stage of the proceedings, Defendant No.2 resisted the Application by

contending that the application is an abuse of the process of the Court and has been

filed with an ulterior motive to dealy the proceedings and drag the Defendants further

into litigation. The Application was also stated to be malafide and filed with a motive

to avoid the hearing and disposal of the suit by the learned Judge before whom it was

substantially heard.

10. Defendant No.2 contends, even otherwise, the application for

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amendment is in teeth of the bar contained in the provisio to Order 6 Rule 17 of the

Code. Indisputably, according to Defendant No.2, the application came to be

preferred at the fag end of the final submissions on the part of Defendant No.2 and

especially to wriggle out of the situation as the learned Judge had posed certain

questions to the learned Counsel for the Plaintiff during the course of the final

submissions. Since the trial had reached at an advanced stage and no case of due

diligence is pleaded, much less, made out, the Plaintiff cannot be permitted to amend

the plaint.

11. It is further contended that the Plaintiff is not entitled to seek the

proposed amendment as the Plaintiff was fully aware of the two instruments i.e.

Development Agreement dated 30 March 1974 and the Deed of Conveyance dated 9

August 1974, in respect of which rectification is sought. The Respondents who are

proposed to be impleaded as Defendants are stated to have no concern with the

subject matter of the suit. They are neither necessary nor proper parties. The

proposed amendment, according to the Defendants, alters the nature of the suit and

has the potential to cause grave prejudice to the Defendant No.2.

12. I have heard Mr. Nusrat Shah, learned Counsel for the

Applicant/Plaintiff and Mr. Snehal Shah, learned Senior Advocate appearing for

Defendant No.2 at some length. With the assistance of the learned Counsel for the

parties, I have perused the original pleadings and the averments in the instant

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application, affidavit in reply and the rejoinder thereto. I have also perused the

relevant documents on record.

13. To start with, it may be apposite to note the observations made by the

Court in the order dated 3 March 2022 as the submissions were canvassed on the

bonafide and propriety of seeking amendment at the fag end of the trial. The Court

observed as under :

"2. The Interim Application seeks joinder of Mrs. Avan Neelum Gidwani as Defendant in the Suit together with certain other persons namely G.G. Vadera, Ashok K. Bhavnani, Jairam C. Raheja and Satram Kriplani.

3. The application also seeks an amendment of the Plaint by making various averments including addition of prayers for declaration that the Development Agreement dated 30th March 1974 and Deed of Conveyance dated 9th August 1974 are sham, colourable and a camouflage and not binding upon the Plaintiff. Further relief is sought for rectification of aforementioned documents.

4. It is extremely unfortunate that such an application is made on behalf of the Plaintiff knowing fully well that this Court had on the first day i.e. prior to the hearing of the Suit sought a clarification from the learned Counsel for the parties as to whether Mrs. Avan Neelum Gidwani was at all concerned with the present Suit since she was personally known to the Judge. The Learned Counsel for the parties had made it clear to this Court that Mrs. Avan Neelum Gidwani has nothing whatsoever to do with the present Suit. It is only upon this Court being satisfied with the fact that Mrs. Avan Neelum Gidwani was in no way concerned with the present Suit that this Court had substantially heard the arguments of the learned Counsel for the parties.

5. It is in fact, noted that the present assignment of suits filed in the year 2013 was before another Judge and it is only upon a joint application being

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made by the parties, considering the fact that all the arguments were substantially heard, the Hon'ble the Chief Justice listed the matter before this Court.

6. Considering the fact that the Plaintiff has now sought to join Mrs. Avan Neelum Gidwani as a party Defendant in the Suit and for which, the Interim Application has been affirmed by the Plaintiff and which is placed before this Court, copy of which has already been served on the advocates for Defendant No. 2, such an Interim Application cannot be considered by this Court.

7. Accordingly, the Registry is directed to place the Interim Application before the alternate Court for hearing as and when it is lodged and filed in the Registry.

8. The present Suit No. 529 of 2013 is adjourned sine die awaiting the outcome of the Interim Application.

9. The Plaintiff shall pay costs of Rs. 50,000/- (Rupees Fifty Thousand only) to the Defendant No. 2 for such a belated Interim Application being taken out and that too at a very advanced stage of final arguments in the above Suit and when these arguments were near completion. The Plaintiff shall pay costs by Pay Order to Defendant No. 2 within a period of one week from the date of this order."

14. Mr. Nusrat Shah, learned Counsel for Plaintiff would urge that since the

Plaintiff upon reconsideration of his position now does not wish to implead Avan

Neelum Gidwani, the aforesaid order may not be arrayed against the Plaintiff. Mr.

Nusrat Shah strenuously submitted that at the stage of considering the application for

amendment, the merits of the amendment cannot be delved into. What has to be kept

in view, according to Mr. Nusrat Shah, is whether the amendment is necessary for

determining the real question in controversy between the parties. In the peculiar facts

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of the case, Mr. Nusrat Shah would urge the presence of the Respondent Nos.3 to 5 is

necessary to have a complete and effectual adjudication of all the disputes between the

Plaintiff and Defendant Nos.1 and 2.

15. Mr. Nusrat Shah would submit that the objection to the proposed

amendment based on stage of the trial is wholly misconceived as it ignores the

legislative object behind incorporating special provisions in Sections 22 and 26 of the

Act, 1963. The proviso to sub-section (2) of Section 22 and the proviso to sub-section

(4) of Section 26 of the Act, 1963 empower the Court to grant amendment seeking

reliefs referred to in the respective Sections at any stage of the proceedings.

Therefore, reliance on the proviso to Order VI Rule 17 is misplaced, submitted Mr.

Nusrat Shah.

16. On the merits of the matter, Mr. Nusrat Shah would urge with tenacity

that it has been the stand of the Defendant No.2 that since the Plaintiff had not sought

any declaration in respect of the Development Agreement dated 30 March 1974 and

the Deed of Indenture dated 9 August 1974, the Plaintiff is not entitled to seek

declaration as originally prayed. Now, the Defendant No.2 cannot take a somersault

and contend that the proposed reliefs cannot be granted.

17. Mr. Nusrat Shah further submitted that the invidious discrimination is

writ large as Defendant No.2 executed conveyance in favour of Defendant No.3, who

is similarly circumstanced. Therefore, proposed amendment incorporating all these

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grounds which are in elaboration of the case originally pleaded by the Plaintiff neither

changes the nature of the suit nor causes prejudice to the Defendants.

18. Mr. Snehal Shah, learned Senior Advocate appearing for the Defendant

No.2, countered the submissions on behalf of the Plaintiff. A two pronged challenge

was mounted to the prayers in the application for amendment. First, the application

for amendment is clearly barred by the proviso to Order VI Rule 17 of the Code. The

Plaintiff has not made any endeavour to demonstrate due diligence. On the contrary,

according to Mr. Snehal Shah, there is material on record to indicate that the Plaintiff

was fully aware of the existence of the development agreement and the Indenture at a

much prior point of time. In fact, the Indenture was annexed to the Written

Statement filed by Defendant No.2 on 13 April 2014. Whereas, the Plaintiff has

obtained copies of the documents under Right to Information Act on 8 May 2015 and

all those documents were tendered in evidence. Yet till the conclusion of a trial, no

application for amendment was filed. The Plaintiff, thus, cannot be permitted to

amend the Plaint.

19. In order to lend support to the submission that the proposed amendment

is sought to salvage the position, Mr. Snehal Shah invited the attention of the Court to

the averments in the Affidavit in Rejoinder, wherein the Plaintiff asserted that the

Plaintiff was compelled to take out Interim Application at an advanced stage of the

arguments in the wake of the plea, during the course of the arguments, that unless the

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original owners of the land were joined reliefs for specific performance cannot be

granted.

20. Mr. Snehal Shah would next urge that the thrust of the submission on

behalf of the Plaintiff that the amendments are sought to avoid multiplicity of the

proceedings by invoking the provisions contained in Sections 22 and 26 of the Act,

1963 is fallacious. Only a party to the instrument is entitled to seek rectification of the

instrument. The Plaintiff is not a party to either Development Agreement or

Indenture. Therefore, proposed prayer for rectification of the instrument is legally

untenable.

21. To buttress this submission, Mr. Snehal Shah placed reliance on a

judgment of the Supreme Court in the case of Joseph John Peter Sandy V/s.

Veronica Thomas Rajkumar and Anr.1

22. The broad principles which govern the application for amendment in pleadings

are well recognized. Two over-arching considerations which govern the plea for

amendment are :

(a) whether the amendment is necessary to decide the real question in

controversy, and

(b) what is the potentiality of prejudice likely to be caused to the

opponent.

1      (2013 3 SCC 801

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23. Indisputably, the power to allow the amendment is of wide amplitude

and the Court may allow the parties to amend the pleadings if the aforesaid two

postulates are satisfied. Where the Court finds that the amendment is necessary for

determination of the real question in controversy, ordinarily discretion is exercised in

favour of allowing such amendment, unless potentiality of prejudice to the opponent

cannot be compensated by payment of costs.

24. In the case of Revajeetu Builders and Developers V/s.

Narayanswamy and Sons and Ors. 2, the Supreme Court after an analysis of the

relevant provisions and the precedents culled out the factors to be taken into

consideration while dealing with an application for amendment. The observations in

paragraphs 63 and 64 are instructive and, hence, extracted below :

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on

2 (2009) 10 SCC 84

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the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

64.The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

25. With the incorporation of the provisio to Order VI Rule 17 of the Code,

the power of the Court to permit the amendment is circumscribed. If a case is

governed by the proviso, namely, where the amendment is sought after the trial has

commenced, the Court must as a jurisdictional condition satisfy itself that the party

seeking amendment could not have sought the same despite due diligence before the

commencement of the trial.

26. In the case of Vidyabai and Ors. V/s. Padmalatha and Anr.3 the

Supreme Court was confronted with the question as to whether the pleadings can be

permitted to be amended after hearing commenced. The Supreme Court answered

the question in the following terms :

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the

3 (2009) 2 SCC 409

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Code, which reads as under :

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. It must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

19. It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. If puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

(emphasis supplied)

27. In the case of M. Revanna V/s. Anjanamma (dead) by legal

representatives and Ors.4 on which reliance was placed by Mr. Snehal Shah, the

legal position in the context of the proviso to Order 6 Rule 17 was reiterated as under :

"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.

The proviso, to an extent, curtails absolute discretion to allow amendment at

4 (2019) 4 SCC 332

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any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though, normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."

(emphasis supplied )

28. On the aforesaid touchstone, reverting to the facts of the case, it is

incontrovertible that the trial commenced in the year 2018. Nay the trial was at the

stage of conclusion when the application for amendment came to be filed. It is also

imperative to note that in the application, the Plaintiff has made no endeavour to

demonstrate that there was due diligence on his part and, despite due diligence, the

application could not be preferred before the commencement of the trial.

29. Mr. Nusrat Shah urged that the aforesaid pronouncements do not

govern the facts of the case at hand. It was urged with a degree of vehemence that the

Plaintiff seeks to amend the Plaint by resorting to the provisions contained in Sections

22 and 26 of the Act, 1963. Therefore, the bar contained in the proviso to Order 6

Rule 17 of the Code would not operate.

30. Relevant part of Section 22 of the Act, 1963 reads as under :

"22. Power to grant relief for possession, partition, refund of earnest money, etc. - (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing

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for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid [made by] him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed :

Provided that where the Plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21".

31. Section 26 of the Act, 1963 reads as under :

"26. When instrument may be rectified - (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing [not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then -

(a) either party or his representative in interest may institute a suit to have the instrument rectified; or

(b) the Plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or

(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.

(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court

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may, in its discretion, direct rectification so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed :

Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."

32. Sub-section (1) of Section 22, as is evident, begins with an non-obstante

clause. It overrides the provisions of the Code and enables a party suing for specific

performance to seek possession or partition and separate possession of the property,

in addition to specific performance, or any other relief to which he may be entitled to

including refund of any earnest money or deposit in case his claim for specific

performance is refused. Sub-section (2) provides that such relief shall not be granted

unless it has been specifically claims. The proviso to sub-section (2), however,

empowers the Court to permit a party to amend the plaint to include the claim for

such relief at any stage of the proceeding.

33. The Special Relief Act, 1963, in a sense, constitutes a special law. The

provisions contained in Section 22 expressly override the provisions contained in the

Code of Civil Procedure. Moreover, the legislature has empowered the court to

permit the amendment at any stage of the proceeding by couching the said proviso in a

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mandatory form by use of expression "the Court shall". The provisions contained in

Section 22, or for that matter, sub-section (4) of Section 26, thus, override the bar

contained in the proviso to Order VI Rule 17 of the Code and unfetter the Court in the

matter of grant of amendment where the case is covered by either of those proviso.

34. A profitable reference in this context can be made to the judgment of the

Supreme Court in the case of Babu Lal V/s. Hazari Lal Kishori Lal and Ors. 5

wherein in the context of the legislative intent in enacting Section 22 of the Act, the

apex court expounded the true nature and scope of Section 22 as under :

"11. Section 22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the Plaintiff may claim a decree for possession in a suit for specific performance : even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the Plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.

12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary, sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit.

5     AIR 1982 SC 818

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Sub-section (2) of the section recognized in clear terms the well established rule of procedure that the court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications." (emphasis supplied)

35. A useful reference can also be made to a judgment of a learned Single

Judge of this Court in the case of Lalchand s/o Sheetalsingh Pardeshi and Ors.

Ramkrishna s/o Kashinath Jadhav and Ors. 6 wherein the learned Single Judge

culled out the conclusions which emerge on the interplay between Section 22 of the

Act, 1963 and the proviso to Order VI Rule 17 of the Code, as under :

"12. In the result, the following conclusions emerge :

(i) that, section 22 of the Specific Relief Act, 1963, overrides the provisions contained in the proviso to Rule 17 of Order VI of the Civil Procedure Code.

(ii) the court has no jurisdiction to reject an application filed by the plaintiff seeking to amend the plaint for claiming relief of possession in a suit for specific performance of contract of immovable property by placing reliance on the proviso to Rule 17 of Order VI of Civil Procedure Code.

(iii) the court cannot refuse such an amendment on the ground that the amendment application has been filed after the commencement of the

6 2003(4) MhL.J. 119

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trial, though the plaintiff could have with due diligence filed the same prior to the commencement of the trial." (emphasis supplied )

36. A pivotal question that wrenches to the fore is whether the provisions

contained in Section 22, and especially Section 26 of the Act, are attracted. As noted

above, the Plaintiff, by way of proposed amendment, seeks a declaration that the

Development Agreement dated 30 March 1974 and Indenture dated 9 August 1974 are

sham, colourable and camouflage documents and do not bind the Plaintiff and also

seeks rectification of those instruments so as to include two bungalows therein. These

two reliefs of declaration and rectification deserve distinct consideration in the light of

governing provisions. Benefit of provisions contained in Sections 22 and 26 of the

Act, 1963 cannot be claimed qua the proposed relief of declaration.

37. To retain emphasis, it may be necessary to note that initially the

agreement for sale of the larger property was executed between Mrs. Avan Gidwani -

vendor and Mr. G.G.Vadera on 19 February 1973. Armed with the said agreement for

sale on 24 January 1974, Mr. G.G.Vadera executed further agreement for sale of the

larger property in favour of Mr. Ashok Bhavnani - Respondent No.3, wherein a

reference was made to the agreement between Mrs. Avan Gidwani and Mr.

G.G.Vadera. This was followed by the Development Agreement dated 30 March

1974 between the Defendant No.1 - New Western, of whom Mr. Ashok Bhavnani was

the partner, and Mr. J.C.Raheja - Respondent No.4, whereunder the Defendant No.1

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agreed to construct a building consisting of ground plus five floors on the larger

property. Eventually, under the Indenture dated 9 August 1974, Mrs. Avan Gidwani,

the original holder along with Mr. G.G.Vadera, the first confirming party, and Mr.

Ashok Bhavnani, the second confirming party, conveyed larger property along with

dwelling house and the structures standing thereon in favour of Defendant No.2. By

the proposed amendment, the Plaintiff seeks declaration in respect of, and the

rectification, in the last two instruments.

38. Undoubtedly, the Plaintiff is not a party to any of these instruments.

The Plaintiff neither seeks to claim under any of the parties to the instruments. In

contrast, the Plaintiff claims that those instruments ought to have included two

bungalows and thereby asserts an interest which is in conflict with the one asserted by

Defendant No.2, who was a party to the Deed of Indenture dated 9 August 1974, and

represented by Mr. J.C.Raheja, the then Chief Promoter, in the executing the

Development Agreement dated 30 March 1974. I find substance in the submission of

Mr. Snehal Shah that neither being a party to the instrument nor a representative in

interest of any of the parties thereto, the Plaintiff would not be entitled to seek

rectification.

39. The nature of the relief of rectification under Section 26 of the Act, 1963

was enunciated by the Supreme Court in the case of State of Karnataka V/s.

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K.K.Mohandas7. The Supreme Court observed that "under Section 26 of the Act,

1963, an instrument or contract may be rectified when through fraud or mutual

mistake of the parties, a contract or other instrument in writing does not express their

real intention. According to Dr. Banerjee in his Tagore Law Lectures on the Law of

Specific Relief, if the parties had deliberately left out something from the written

instrument, that cannot be put in by resort to the remedy of rectification".

40. In the case of Joseph John Peter Sandy (supra), on which strong

reliance was placed by Mr. Snehal Shah, the scope and import of Section 26 of the

Act, 1963 was expounded as under :

"9. Section of the Specific Relief Act, 1963 (hereinafter referred to as the Act) provides for rectification of instruments, where through fraud or a mutual mistake of the parties, an instruct in writing does not express the real intention, then the parties may apply for rectification. However, sub-section (4) thereof provides that such a relief cannot be granted by the court, unless it is specifically claimed.

10. In Subhadra V. Thankam 8 this Court while deciding upon whether the agreement suffers from any ambiguity and whether rectification is needed, held that when the description of the entire property has been given and in the face of the matters being beyond ambiguity, "the question of rectification in terms of Section 26 of the Act would, thus, not arise. The provisions of Section 26 of the Act would be attracted in limited cases.

The provisions of this section do not have a general application. These provisions can be attracted in the cases only where the ingredients stated in the section are satisfied. The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in 7 (2007) 6 SCC 484 8 (2010) 11 SCC 514

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relation to an instrument." (SCC pp.518-519, para 16). A similar view has been reiterated by this Court in State of Karnataka (supra).

11. Thus, in view of the above, it can be held that Section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else."

41. The aforesaid pronouncement governs the facts of the case at hand.

The principal contention of the Plaintiff is that the Defendant No.1 had assured that,

at a later point of time, sub-division of the larger property would be effected and the

suit property comprising the bungalow and the appurtenant land would be conveyed

to the Plaintiff by the Defendant No.2 Society. In the light of this nature of the

Plaintiff's claim, the Plaintiff who is not a party to the aforesaid instruments cannot be

permitted to seek an amendment so as to make averments in justification of the

necessity of rectification and seek rectification of those instruments. Resort to the

provisions contained in Section 26 of the Act, 1963, therefore, does not seem

sustainable. Thus the averment in the Schedule of proposed amendment revolving

around the rectification of the Development Agreement dated 30 March 1974 and

Deed of Indenture dated 9 August 1974 do not deserve to be permitted to be brought

on record by way of amendment.

42. So far as the reliefs of declaration that the aforesaid instruments are

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sham, colourable and camouflage documents and do not bind the Plaintiff, the reliefs

seem to be clearly barred by limitation. It is not the case that the Plaintiff was unaware

of the existence of those instruments. The Indenture dated 9 August 1974 was

annexed to the Written Statement filed on behalf of Defendant No.2 in the month of

April 2014. It could not be disputed that the Plaintiff obtained copies of the

Development Agreement dated 30 March 1974 and all the documents pertaining to

Defendant No.2 Society under the Right to Information Act, under a cover of the

letter dated 8 May 2015. A suit for declaration under Article 58 of the Limitation Act,

1963, thus, ought to have been filed within three years of the first accrual of the right

to sue. The relief of declaration is clearly barred by law of limitation.

43. Moreover, the bar under the proviso to Rule 17 of Order VI would

govern the proposed prayer of declaration qua those two instruments. As noted

above, no endeavour has been made to show due diligence and justify the prayer for

amendment at this stage.

44. So far as the prayer for impleadment of Respondent Nos.3 to 5 as

Defendants, Respondent Nos.3 to 5, in the presence of Defendant Nos.1 and 2 as

party Defendants to the Suit, do not seem to have a direct and subsisting interest in

the subject matter of the suit so as to make them necessary parties. Respondent No.1

is sought to be impleaded as the then partner of Defendant No.1. Whereas,

Respondent Nos.4 and 5 are sought to be impleaded in the capacity of the then office

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bearers of Defendant No.1. It would be suffice to note under Section 19(1)(e) of the

Specific Relief Act, 1963, when the promoters of a company have, before its

incorporation , entered into a contract for the purpose of the Company, specific

performance of a contract may be enforced against the company. Presence of

Respondent Nos.3 to 5 does not seem to be essential for a complete and effectual

adjudication of the disputes which are essentially between the Plaintiff and Defendant

No.2. Even otherwise, as regards the allegations sought to be attributed against the

Respondent Nos.3 to 5, the bar under Order VI Rule 17 comes into play and precludes

the Plaintiff from seeking to amend the Plaint.

45. Mr. Snehal Shah made an endeavour to impress upon the court that the

suit is not at all governed by the provisions of the Specific Relief Act, 1963. In

substance, it is not a suit for specific performance of the Contract.

46. I am afraid to accede to this submission. It is trite, a plaint has to be read

as a whole. A meaningful reading of the plaint would indicate that the Plaintiff claims

that a conveyance was allegedly obtained in the name of Defendant No.2 Society as a

matter of convenience and practical utility at that point of time. The Plaintiff asserts,

it was further agreed by and between the parties that the Defendant No.2 would, at a

later point of time, sub-divide the plot and execute the conveyance of the suit property

in favour of the Plaintiff.

47. It is pertinent to note that the Plaintiff draws support and sustenance to

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his claim from the execution of the conveyance and transfer of reversionary rights in

respect of bungalow No.2 and the appurtenant land in favour of Defendant No.3. To

add to this, in prayer clauses (d) and (f) of the Plaint, the Plaintiff seeks directions to

execute a Deed of Conveyance and/or transfer reversionary rights in respect of the

suit property in favour of the Plaintiff and do all such acts and execute all such

instruments, as may be necessary, to execute sub-division of the property.

48. I am, therefore, persuaded to hold that the suit contains, inter alia, relief

of specific performance. Therefore, the provisions contained in Section 22 of the Act,

1963 would govern the application so far as the proposed prayers of partition and

separate possession of the suit property. The Plaintiff is, thus, entitled to seek

amendment in the plaint to amend the Plaint to seek prayer for partition and separate

possession.

49. The Plaintiff's endeavour to seek a declaration that the Plaintiff has

perfected title by way of adverse possession, in addition to the substantive reliefs of

declaration and specific performance, and not in the alternative, by way of proposed

amendment, does not change the character of the said prayer, in particular, and the

Suit, in general.

50. Resultantly, the Application deserves to be partly allowed.

51. Hence, the following order :

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                                          ORDER

                (i)     The Application stands partly allowed, subject to payment of

costs of Rs.15,000/- to the Defendant No.2 by the Plaintiff.

(ii) The Plaintiff is permitted to amend the Plaint so as to incorporate

amendments as claimed in para 3, 4, 5, and 10 (wrongly numbered as 5) of the

Schedule and to add prayer clauses (c)i and (c)ii of the proposed schedule of

amendments.

(iii) The Application to incorporate rest of the averments and prayers

in the schedule of amendments stands rejected.

(iv) Necessary amendment be carried out and amended copy be

served on the Defendants within a period of three weeks.

(v) The Defendants are at liberty to file an additional written

statement dealing with the amended portion of the plaint within one month of being

served with the copy of the amended plaint.

                (vi)    Costs in cause.

                (vii)   The Interim Application stands disposed.




                                                          ( N.J.JAMADAR, J. )




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