Partly allowed

Francis James Almeida S/O Charles I. Almeida v. Rosy C. Almeida Wd/O Charles I. Almeida and 3 Ors.

Bombay HC3 Oct 2013CHS/1793/2011

Case brief

AI extract

What is this about?

The court permitted amendment of plaint to add a prayer declaring a will fraudulent in a partition suit, keeping limitation open, but rejected prayers for trademark cancellation and averments challenging licenses as irrelevant to partition.

What did the court decide?

Amendment allowed to add prayer (f)(i) declaring will fraudulent; other amendments rejected.

Francis James Almeida S/O Charles I. Almeida Vs Rosy C. Almeida… — Partition | Bombay HC (2013)

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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. 1793 OF 2011

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SUIT NO.2762 OF 2009

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Francis James Almeida ... Plaintiff/Respondent.

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V/s.

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Rosy Charles Almeida & Ors., ... Defendants.

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Mr.Y.S.Bhate for applicant in CHS and plaintiff, Mr.D.H.Mehta, Counsel, Mr.Girish Utangale, Advocate along with Mr.B.V.Phadnis, Akhil Kupade, Advocate i/b. Utangale & Co., for Respondent No.4, Mr.D.A.Nalawade, for defendant Nos. 1,2 and 3.

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CORAM : R.D.DHANUKA J. DATED : October 3, 2013.

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P.C. :

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By this chamber summons plaintiff seeks amendment of plaint in terms of schedule appended to chamber summons. In prayer (a) of the chamber summons, the plaintiff has prayed for impleadment of the proposed defendants as defendant No.5 to 9. During course of argument on the date of last hearing, the learned counsel for the plaintiff sought time to file new schedule. Learned counsel for the plaintiff tenders new schedule in the court today. On perusal of the new schedule filed by the learned counsel, it appears that the plaintiff seeks to add prayer (f)(i) by which plaintiff seeks declaration that purported will dated 06/05/2002 executed by plaintiff's father was a fraudulent document and same is not binding upon the plaintiff. Plaintiff also seeks two interim prayers against defendant Nos.1 to 4 to forthwith cancel and deregister the Trade Mark and/or from dealing with Almeida brand. On perusal of the

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new schedule tendered today, it appears that the plaintiff seeks to add various averments relating to challenge various licenses, trade marks, sales tax registration etc. in the plaint.

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On perusal of the plaint, it is clear that the suit is for partition. On perusal of various averments in the plaint, it is clear that the plaintiff has laid foundation thereby disputes the will dated 06/05/2002 in the plaint. However, there is no prayer for declaration that the purported will dated 06/05/2002 was a fraudulent document and is not binding upon the plaintiff.

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Since foundation is already laid in the plaint disputes the will dated 06/05/2002, in my view amendment sought by the plaintiff for declaration can be granted, however subject to the clarification that issue of limitation in respect of such plea would be kept open.

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As far as prayers (f)(ii) and (f)(iii) sought to be included by the amendment are concerned, in my view in a suit of partition, no relief can be claimed for deregistering of various trade marks or for restraining the defendants from obtaining and dealing with trade mark, such interim relief sought to be added also cannot be granted.

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As far as averment sought to be included in the new schedule are concerned, on perusal of the averment, it is clear that the plaintiff seeks to challenge various licenses and certificates issued in favour of the defendants. In my view, since no such prayer can be permitted in the suit for partition, such averments also can not be permitted which are not relevant for the purpose of deciding suit for partition. I, therefore, pass the following order :

ORDER

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I)	Plaintiff is permitted to add prayer (f)(i) after prayer clause (f) in terms of the new schedule handed in.
II)	Amendment in respect of the rest of the prayers of the new schedule tendered by the learned counsel is rejected.
III)	Amendment to be carried out within two weeks from today.
IV	It is made clear that issue of limitation in so far as prayer to add prayer (f)(i) allowed by this order is kept open.
V)	It is also made clear that if the plaintiff seeks to rely upon any documents in support of prayer (f) (i), which are annexed to chamber summons and if are relevant, plaintiff would be permitted to rely upon the same at the time trial.
VI)	Chamber summons is disposed of in aforesaid terms.
VII)	No order as to costs.
	( R.D.DHANUKA, J.)

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Gaikwad RD

Francis James Almeida S/O Charles I. Almeida v. Rosy C. Almeida Wd/O Charles I. Almeida and 3 Ors.

Case brief

What is this about?

What did the court decide?

Francis James Almeida S/O Charles I. Almeida v. Rosy C. Almeida Wd/O Charles I. Almeida and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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