Allowed

Shrimati Shahida Elai Shekh v. Smt. Bebi Nuruddin Sanglikar, and Ors.

Bombay HC18 Apr 2013WP/3296/2012

Case brief

AI extract

What is this about?

In an application to correct a defendant's name and allow the addition to relate back to the suit date, the High Court held that the Trial Court erred in deciding the 'relate back' prayer without first considering the plea of bona fide mistake regarding the party's initial omission, despite a prior amendment adding the party.

What did the court decide?

The impugned order rejecting the prayer for the addition to relate back is set aside, and the issue of bona fide mistake is to be kept open and tried in the suit.

Shrimati Shahida Elai Shekh Vs Smt. Bebi… — Pension and Retirement Benefits | Bombay HC (2013)

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901.wp.3296.12J.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3296 OF 2012

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Shrimati Shahida Elai Shekh ] Age-52 yrs. Occ : Service, ] R/o. Jawahar Nagar, Kolhapur ]..Petitioner

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-Versus-

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1 Shrimati Bebi Nuruddin Sanglikar, ] Age-57 yrs, Occ. Housework. ] ] 2 Shri Shabbir Nuruddin Sanglikar, ] Age-37 yrs, Occ. Business. ] ] 3 Shri Imtiyaj Nuruddin Sanglikar, ] Age-38 yrs, Occ. Business, ] Above 1 to 3 Reside at ] R/o- 898, Azad Chowk, ‘B’ ward, ] Vijaya Apartment, Kolhapur. ] ] 4 Sou. Rehana alis Shahana Irfan Makandar, ] Age:- 30, Occ :- Housework, ] At/p-Tembe Road, Near Shahu ] Maidan, Kolhapur. ] ] 5 Shrimati Raziya Nooruddin Sanglikar, ] Age-48 yrs, Occ. Housework, ] R/o Ganeshnagar, Near Aroma Bakary, ] Ichalkaranji, Dist. Kolhapur ]..Respondents

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Mr.Sandeep Koregave, Advocate for the Petitioner.

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Mr.Drupad S. Patil, Advocate for the Respondent No.4

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CORAM : R.M. SAVANT, J. DATE : 18^TH APRIL 2013

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S.K.Talekar

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901.wp.3296.12J.doc

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ORAL ORDER

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1 Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

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2 The short controversy in the above Petition as to whether the addition of the Defendant No.4 to the Suit by the amendment allowed can be said to be from the date of inception of the Suit. The order under challenge is one dated 18.11.2011 passed by the learned 3^rd Joint Civil Judge, Senior Division, Kolhapur by which order the application Exhibit 70 came to be partly allowed in as much as the Plaintiff was allowed to amend the Plaint by substituting the name of the Defendant No.4 as Rehana alias Shahana Irfan Makandar. The second relief sought by the said application namely that the addition of the Defendant No.4 to relate back to the date of the filing of the Suit was rejected by the Trial Court.

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3 Shorn of unnecessary details a few facts can be stated thus :

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The Petitioner herein is the Original Plaintiff who has filed Special Civil Suit No.292/2007 for specific performance of the Agreement to Sale dated 20.10.2005. By the said Agreement to Sale, one Nuruddin Sanglikar had agreed to Sale the disputed property to the Petitioner and the consideration for the same was Rs.3,25,000/-. The said Nuruddin died on 13.11.2005. The Plaintiff called upon the heirs of the said

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Nuruddin to comply with the said Agreement to Sale by executing the Sale Deed. However, on the refusal of the heirs of the said Nuruddin, the Plaintiff filed the Suit in question for specific performance. The Suit as originally filed was against the first wife and the two children of the said Nuruddin from the first wife. The said Defendants filed their written statement to the Suit. However, it seems that in the said written statement, the fact that Nuruddin had a daughter by name Rehana was not pleaded. It is during the cross-examination of the Defendants’ witness that it was revealed that Nuruddin had a daughter by the name of Rehana. It is thereafter that the Plaintiff filed an application invoking Order I, Rule 10 of the Code of Civil Procedure, 1908 to add the said Rehana as the Defendant No.4 which application was filed on 22.06.2010. The said application was allowed and Rehana was allowed to be joined as a Party Defendant No.4 to the Suit. The Plaintiff accordingly amended the Plaint. The Defendant No.4-Rehana filed her written statement and in the said written statement averred that her name was not ‘Rehana’ but ‘Shahana’. It is thereafter that the Plaintiff filed the instant application Exhibit 70 for twofold reliefs that correction of the name of the 'Rehana' to 'Shahana' and for the relief that the addition of the Defendant No.4 i.e. Rehana @ Shahana relates back to the date of the filing of the Suit. The said application was opposed on behalf of the Respondent No.4 i.e. the Defendant No.2 to the Suit by filing a reply and

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S.K.Talekar

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an objection was taken to the relief sought of the addition of the Defendant No.4 relating back to the date of the filing of the Suit.

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4 The Trial Court considered the said application Exhibit 70 and has by the impugned order partly allowed the same to the extent of allowing the correction of the name of the said Rehana as Rehana @ Shanana Irfan Makandar but rejected the second relief. In so far as the said second relief is concerned, the Trial Court was of the view that since the name of Rehana has been included pursuant to the amendment which has been carried out in the year 2010, the effect of the same would be from the date inserting her name as the Defendant No.4 and not from the date of the filing of the Suit. As indicated above it is the said order dated 18.11.2011 which is impugned in the present Petition.

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5 On behalf of the Petitioner Mr. Koregave, the learned advocate would contend that though the written statement was filed on behalf of the Original Defendant Nos.1 to 3, the fact that Nuruddin had a daughter by the name of Rehana was not disclosed. The submission of the learned counsel is that on account of a bona fide mistake and in good faith that the Defendant No.4 was not arrayed originally as a party to the Suit. The learned counsel would contend that in view of Section 21 of the Limitation Act, the insertion of the Defendant No.4 to the Suit would relate

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back to the date of the filing of the Suit.

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6 Per contra, the learned counsel appearing on behalf of the Respondent No.4 would contend that Section 21 of the Limitation Act would have no application considering the fact that the parties are relatives in as much as the Plaintiff is the cousin of the Defendant No.4 as their mothers are sisters. The learned counsel would contend that the Plaintiff was aware that Nuruddin had a daughter by the name of Shahana and therefore non-inclusion of the Defendant No.4 to the Suit as filed cannot be attributed to a mistake or good faith.

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7 Having heard the learned counsel for the parties, I have bestowed

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my anxious consideration to the rival contentions. As can be seen from the impugned order, the Trial Court has rejected the second relief sought by way of the said application Exhibit 70 on the ground that it is only after the first amendment in the Suit whereby Rehana for the first time was added as the Defendant No.4 that the Trial Court rejected the said relief as according to the Trial Court the effect of the said amendment would be from the date of insertion of her name as the Defendant No.4. The Trial Court therefore has not considered the second relief sought by the Plaintiff by the said application Exhibit 70 on the touchstone of Section 21 of the Limitation Act. It is well settled by pronouncements of the Apex

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S.K.Talekar

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Court one of which is the judgment reported in 2000(10) SCC 141 in the matter of R.R.Naidu Versus State of Madhya Pradesh if the Suit is filed against improper persons on a bona fide mistake the delay in impleading proper persons can be condoned. The Apex Court in the Suit and considering Section 21 of the Limitation Act. In the instant case, it the case of the Petitioner that it is on account of bona fide mistake that the Defendant No.4 was not originally joined as a Party Defendant to the Suit. The said fact has been disputed by the Respondent No.4. In view thereof, the Trial Court ought to have kept the issue open so that the parties could lead evidence in that respect as a decision on the said issue would have far reaching consequences to both the Plaintiff as well as the Respondent No.4 who is one of the heirs of Nuruddin who had executed the Agreement to Sale in favour of the Plaintiff. However, the Trial Court as indicated above, has concluded the issue on the ground that since the Defendant No.4 has been added pursuant to the first amendment which was carried out in the year 2010, it would not relate back to the date of the filing of the Suit. The impugned order therefore in so far as it rejects the second relief sought in the application Exhibit 70

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on the ground mentioned in the impugned order is required to be set aside and the issue as to whether the addition of the Defendant No.4 would relate back to the date of the filing of the Suit is kept open for being tried in the Suit after giving the parties an opportunity to lead evidence

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pursuant to an issue which would be framed in that regard by the Trial Court. The Trial Court therefore to frame an issue in that regard and try it along with the other issues that would be framed.

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Rule is accordingly made absolute in the aforesaid terms with

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parties to bear their respective costs of the Petition.

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(R.M. SAVANT, J.)

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S.K.Talekar

Shrimati Shahida Elai Shekh v. Smt. Bebi Nuruddin Sanglikar, and Ors.

Case brief

What is this about?

What did the court decide?

Shrimati Shahida Elai Shekh v. Smt. Bebi Nuruddin Sanglikar, and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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