Allowed

Vinita Sushi Aswani and Ors. v. Tilotama Ramchandra Shingid and Ors.

Bombay HC4 Oct 2007WP/6066/2007

Case brief

AI extract

What is this about?

This court allowed a writ petition quashing the trial court's refusal to permit an amendment of the plaint. The amendment sought to correct a factual statement regarding a compromise decree to reflect a compromise purgiss, holding that this did not alter the nature of the suit. The application for amendment was also allowed.

What did the court decide?

Impugned order quashed and set aside; application for amendment of plaint allowed.

Vinita Sushi Aswani and Ors. Vs Tilotama Ramchandra… — Specific Performance | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE SIDE

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WRIT PETITION NO. 6066 OF 200 7

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Vinita Aswani & ors.... Petitioner

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versus

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Smt. Tilotama Ranchandra Shingid & ors..

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.... Respondent.

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Mr. Ketan A. Chothari & Anand P.Lavate for the petitioners.

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Mrs. S.A.Dhamale for Respondents 1 to 3.

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CORAM; A.P. DESHPANDE, J. DATED; 04T H OCTOBER, 2007

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P.C.;

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Rule. Rule made returnable forthwith. Taken up

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for final hearing by consent of parties.

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2.	The present petitioners	are legal	representatives
of	original Plaintiff by name	Shrichand	Hatchand
Hariyani.	The original Plaintiff	instituted	a suit
for	specific performance of an agr	eement under	which
the	Plaintiffs claim to have purch	ased 1/3	undivided
share	in the suit property, which	is a flat,	comprised
in	Co-op. housing society.	According	to the
Plaintiff	he entered into an agreeme	nt with a	view to
purchase	1/3 undivided share in the	said flat	from one
Ramchand	ra. The other two persons	having 1/3	share in
the	flat are Shri Nagul and Shri	Kedari.	The subject

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matter of the suit filed by the Plaintiff is for the purchase of 1/3 undivided share in the flat which was claimed to be owned by Ramchandra. The defendant/respondents are the legal representatives of Ramchandra, who are disputing the plaintiff’s right under the said agreement.

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3.	It is averred by the Plaintiff in the plai	nt that
Ramchandra	had instituted a dispute bearing	No.49/78
in the	Co-operative Court No.II against Shri Nagul	and
Shri	Kedari. It is then stated that the said	dispute
was	settled amicably. It is categorically averr	ed in
the pl	aint that it was informed to the	original
Plaintiff	that the dispute was settled by	the
compromise	decree. It is the case of the	Plaintiff
that	subsequent to the filing of the suit, when	they
were	brought on record as legal heirs of the	original
Plaintiff	they tried to obtain certified copy of	the
compromise	decree, when they came to know that	no
compromise	decree was passed but on the basis of	the
compromise	pursis filed before the Co-operative	Court,
the	dispute No.49/78 was withdran. Realising th	at an
incorrect	statement of fact has been made in	the
plaint,	the Plaintiffs moved an application	for
amendment	of the plaint under Order 6 Rule 17 of	CPC
and the	rejection of the said application by the	trial

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court has given rise to the filing of the present writ

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petition.

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4. What is sought	to be amended is only a	statement
made in the plaint t	hat a compromise decree was	passed
in the dispute filed	by Ramchandra. What is	proposed
to be brought on	record is that the dispute	was
compromised by filing	compromise pursis in the	dispute
and the dispute was	withdrawn and no compromise	decree
was passed. The	proposed amendment is intended	to
correct the incorrect	statement of fact which in	no
way goes to change	the nature of the dispute.	The
Plaintiffs claim 1/3	share from Ramchandra,	but
instead of pleading	that Ramchandra got the	share
under compromise decree	, what is proposed to	be
pleaded is Ramchandra	had 1/3 share under c	ompromise
pursis, acting on which	the suit was withdrawn.	It is
difficult to understand	as to how come the nature	of
the suit is chang	ed by granting the	proposed
amendment, which is	the finding recorded by the	trial
court. Amendment	does not in any manner change	the
nature of the suit.	The defendants are in no	way
prejudiced if the	plaintiff is permitted to	correct
the incorrect statemen	t made in the plaint,	which
hardly has any b	earing on the issues in	dispute.
Reference to the pro	viso to Order 6 Rule 17 is	also
misconceived, as amend	ment of CPC has come into	force
from 1-7-2002 wherea	s the suit is filed in the	year
2001. The impugned	order passed by the trial co	urt is

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unsustainable in law and patent illegality it is to be

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corrected by exercising writ jurisdicition.

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5.	In the	result,	writ	petition	is	allowed.	Impugned
order	passed	by the	trial	court	is	quashed and	set
aside.	The	application	mo	ved	by	the plaintiff	seeking
amendment	to	the	plaint	is	also	allowed.	Plaintiff
shall	carry	out the	ame	ndment	and	if the	defendants
want	to carr	y out		conseq	uential	amendment,	the
defendants	are	permitte	d	to		carry out	the

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consequential amendment. The court shall proceed to

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decide the suit in accordance with the law on merit.

Vinita Sushi Aswani and Ors. v. Tilotama Ramchandra Shingid and Ors.

Case brief

What is this about?

What did the court decide?

Vinita Sushi Aswani and Ors. v. Tilotama Ramchandra Shingid and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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