Dismissed

The Trustees of the Port of Bombay v. Miss Jyotsna B. Kothari and Ors.

Bombay HC22 Jan 2010CHS/690/2009

Case brief

AI extract

What is this about?

The court dismissed a chamber summons seeking amendment of a plaint filed in 1970 to add a claim for mesne profits. The court held the application was barred by limitation due to gross delay. Approval was denied as it introduced a new cause of action causing prejudice.

What did the court decide?

Application for amendment of plaint dismissed due to bar of limitation.

The Trustees of the Port of Bombay Vs Miss… — Civil Procedure and Limitation | 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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CHAMBER SUMMONS NO. 690 OF 2009
IN

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SUIT NO. 523 OF 1970

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The Trustees of the Port of Bombay...Plaintiff
vs.

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Miss Jyotsna B. Kothari & Ors.

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...Defendants

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Mr.U.J. Makhija, Sr.Counsel with Mr.Parag Khandhar
i/b. M/s.Mulla & Mulla & Craigie Blunt & Caroe for
the Plaintiff.

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Mr.D.H.Mehta with Mr.D.D. Mehta i/b. M/s.D.M. Legal
Associates for the Defendants.

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 CORAM : V.M. KANADE, J.

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 DATED : JANUARY 22, 2010

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P.C. :-

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1Heard.

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2This Chamber Summons is taken out by the

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plaintiff seeking amendment of the plaint in terms
of the schedule annexed to the Chamber Summons. By

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the said amendment, the plaintiff seeks to change

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the title of the plaint with the words �Board of� in

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between the words �The Trustees� and in para 3 for
deletion of the words �and further compensation� and
addition of a paragraph stating therein that the
plaintiffs are also entitled to mesne profits and/or
damages under Order XX Rule 12 of the Code of Civil
Procedure, 1908 in respect of the suit premises at
the rate of 120.50 per square meter per month and
any other rate applicable from time to time till
quiet vacant and peaceful possession of the said
premises is handed over to the plaintiff and for
deleting the words �and further compensation at the
same rate from 1st July 1970 until delivery of
possession of the said premises� in the prayer
clause (b) and for adding prayer clause (e-1) for
claiming mesne profits.

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3The learned Counsel for the plaintiff

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submitted that in the similar suit filed by the
Boards against similarly placed defendant, chamber

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summons was allowed by the learned Single Judge of
this Court by its order dated June 9, 2009 (Coram :

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A.M. Khanwilkar, J.) in Suit No.1154/1974 which

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order was challenged by the defendant therein and
appeal was dismissed. However, the Appellate Court

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held that the said amendment would be subject to
objection on the ground of limitation. It was
submitted that instead of seeking damage, the
plaintiff is seeking mesne profits and therefore,
there was no change in the cause of action and no
prejudice was caused to the plaintiff.

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4On the other hand, Shri Mehta, learned

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Counsel for the defendants submitted that by trying

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to introduce a claim of mesne profits, the plaintiff

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was trying to introduce a new cause of action. He
submitted that when the suit was filed, the

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plaintiff could not have claimed mesne profits since

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it was barred by the law of limitation and since

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the plaintiff was aware of this fact, it is
submitted that the plaintiff should not be permitted

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now to amend the plaint and introduce a new cause of

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action. He submitted that the said amendment was
bound to cause prejudice to the defendants since in
the earlier suit, the compensation was claimed at a
fixed rate and by the present amendment, the
plaintiff would claim an indefinite amount by
claiming damages. He relied on the judgment of the
Apex Court in Vidyabai and others vs. Padmalatha and

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another ((2009) 2 SCC 409)

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5In my view, there is much substance in the
submission made by the learned Counsel for the
defendants. The plaint is sought to be amended by
introducing a new cause of action viz. mesne profits
under Order XX Rule 12 by substituting claim for
damages which was at a fixed rate. Apart from that,
it has to be noted that the suit was filed by the
plaintiff in 1970 and 40 years have passed after
filing of the suit. Admittedly, the parties have
examined witnesses who in turn have been cross-
examined. Permitting the plaintiff to now amend the

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plaint would cause further delay in disposal of the

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suit. The plaintiff could have very well made those

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prayers at the time of filing of the suit. No

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explanation has been given as to why an application
for amendment is not filed till 2009. There is also

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some substance in the submission made by the
defendants that by introducing claim for mesne
profits, virtually, a new claim is made by the
plaintiff against the defendants which definitely is

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not a consequential claim. The only ground which
was urged for the delay caused in filing the
application for amendment is that the parties were
trying to settle the dispute.

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6So far as the judgment of the learned
Single Judge in Suit No.1154 of 1974 and order
passed in appeal is concerned, in my view, though

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the orders are passed under the facts and
circumstances in that case and it cannot said that

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the said orders are binding on this court taking
into consideration the gross delay in filing this

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chamber summons and since the chamber summons
obviously is barred by limitation, the question of
permitting the plaintiff to amend subject to the
objection of limitation does not arise.

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7Chamber Summons, accordingly, is dismissed.

The Trustees of the Port of Bombay v. Miss Jyotsna B. Kothari and Ors.

Case brief

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The Trustees of the Port of Bombay v. Miss Jyotsna B. Kothari and Ors.

Case brief

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What the court decided

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