Dismissed

Rajendra Builders v. Minakshi Mahendra Paitroda and Ors.

Bombay HC28 Sept 2010APP/985/2010

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed an appeal challenging a Single Judge's order permitting amendment to a partition suit. The court held that changing the prayer from a specific monetary sum to a property share did not withdraw prior admissions regarding the share percentage and did not alter the cause of action, thus enforcing the Single Judge's discretion.

What did the court decide?

The appeal was dismissed. Time to file supplementary written statement was extended by six weeks.

Rajendra Builders Vs Minakshi Mahendra Paitroda and Ors. — Property and Title | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.985 OF 2010

Rajendra Builders.

... Appellants

Vs.

Minakshi Mahendra Pitroda & Ors. ... Respondents

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Mr. Zubin Behramkamdin i/b Vimla & Co. for the appellants.

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Mr. R.N. Bhagatjee for respondent 1.

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Mr. Ashish Kamath with Mr. V.K. Shiralkar and Mr. Sushant Chavan i/b Shiralkar & Co. for respondents 2 to 10.

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CORAM: MRS. RANJANA DESAI & R.V. MORE, JJ.

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DATED : 28TH SEPTEMBER, 2010.

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P.C. :- (Per Smt. Ranjana Desai, J.)

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The appellant is original defendant 10-A in Suit No.

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3301 of 1996 filed by respondent 1 - the original plaintiff.

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(For convenience sake, parties shall be referred to in this

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order as per their description in the suit). The plaintiff is

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sister of defendant 14. Defendant 11 is the uncle of the

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plaintiff. The dispute, inter alia, is about family partnership firm, minute details of which need not be gone into for dealing with the challenge to the impugned order. The plaintiff claims one-fourth share in the suit property. According to her, her brother i.e. defendant 14 has one-fourth share in the suit property. Thus, together they have half share in the suit property.

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The plaintiff has, inter alia, prayed that it may be declared that defendants 1 to 6 have no right to deal with and/or dispose of half share of the plaintiff and defendant 14 in favour of defendants 7 to 10 and the Agreement for Sale dated 20/1/1994 does not create any right, title or interest in favour of defendants 7 to 10 so far as the half share of the plaintiff and defendant 14 is concerned. Alternatively, the plaintiff has prayed that the defendants be decreed and ordered to pay to the plaintiff a sum of Rs. 75,00,000/- towards one-fourth share as per the particulars of claim at Ex-W. Particulars of claim are at Ex-W, which read as under :

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“ PARTICULARS OF CLAIM

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Total Value of the suit property at Andheri as on 20^thJanuary 1994 (Date of Agreement for Sale)	Rs. 2,50,00,000.00
Add: General damage for mental torture, agony and harassment and legal and other expenses.	Rs. 50,00,000.00 -------------------------- Rs. 3,00,00,000.00 ===========
One-fourth share of Plaintiffs..	Rs. 75,00,000.00
Therefore total claim of the Plaintiff.	Rs. 75,00,000.00” --------------------------

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The plaintiff took out Chamber Summons No.625 of 2010 for amendment of the plaint. By the impugned order, learned Single Judge has partly allowed the chamber summons. The said order is challenged in this appeal. Before we deal with the challenge raised to the impugned order by learned counsel for the appellants, it is necessary to understand what sort of amendment the plaintiff wanted to carry out.

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The first amendment is to add one Deepak Rathod as defendant 15. Learned Single Judge has declined permission to add Deepak Rathod as the defendant because according to her Deepak Rathod can be called as a witness. There is no challenge to this.

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By the second amendment, the plaintiff seeks to delete the words `1,50,00,000/-' from paragraph 29 wrongly shown as paragraph 26, and in its place insert the words 50% of the suit property and/or 50% of 4199.6 sq.yards bearing CTS No.479, 479(1) to (17) at village Chakala, Taluka Andheri, Mumbai Suburban. Learned Single Judge has permitted this amendment. Counsel for the appellant has assailed this part of the order.

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The third amendment seeks to add certain documents as exhibits which the plaintiff states she could not acquire inspite of due diligence and they are necessary to be exhibited because they crystallize the fraud allegedly committed by the defendants. This

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amendment has been granted. Counsel for the appellants has not seriously challenged this amendment.

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It is the grant of second amendment which has come under heavy criticism. Counsel for the appellants submitted that by granting this amendment, learned Single Judge has allowed the plaintiff to resile from admission. He submitted that in the plaint, the plaintiff has averred that the defendants are liable to pay to the plaintiff and defendant 14 a sum of Rs.1,50,00,000/(Rupees One Crore Fifty Lakhs) as per particulars of claim annexed to the plaint. Counsel submitted that by deleting the words “Rupees One Crore Fifty Lakhs” from paragraph 29 and inserting in its place 50% of the suit property, the plaintiff is withdrawing admission that she and defendant 14 were entitled to Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs). Counsel further submitted that suit for partition is not maintainable where money is claimed. Counsel submitted that claim would be hit by limitation also.

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It is not possible for us to accept this submission. In

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the plaint, at several places, the plaintiff has made it clear that she and her brother i.e. defendant 14 have half share in the suit property. That stand has not changed. By the proposed amendment, the plaintiff has not gone back on this stand. The prayer claiming half share remains the same. It is not changed to claim a larger share. Learned Single Judge is right when she observes that the amount of Rs.75,00,000/- mentioned in the prayer is quantification of her one-fourth share. Amount of Rs.1,50,00,000/(Rupees One Crore Fifty Lakhs) is quantification of her and defendant 14's half share. Instead of quantification of share, the plaintiff wants to claim half share in the property by amending the plaint. It is stating the obvious that at time of passing the decree of partition, the court may order partition by metes and bounds if possible or the court may make monetary evaluation of the share of

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the plaintiff. Learned Single Judge is also right in observing that the court can always mould the relief. In

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our opinion, the plaintiff has not withdrawn any admission. There is no change in the cause of action.

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It is well settled that while considering amendment application, hyper-technical approach is not to be adopted. At any stage of suit, amendment can be granted in the interest of justice to avoid multiplicity of litigation. The plea that the relief sought by way of amendment was barred by limitation could be a subject matter of the issue after allowing amendment. This court cannot lightly interfere with the discretion exercised by a trial court in allowing amendment in the absence of cogent reasons and compelling circumstances.

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In our opinion, no case is made out for interfering with the impugned order. Appeal is dismissed. However, in view of the amendment, the time to file supplementary written statement is extended by six weeks.

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[MRS. RANJANA DESAI, J.]

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[R.V. MORE, J.]

Rajendra Builders v. Minakshi Mahendra Paitroda and Ors.

Case brief

What is this about?

What did the court decide?

Rajendra Builders v. Minakshi Mahendra Paitroda and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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