Allowed

Mathurabai Kisan Koli and Anr. v. Latika Bhaskar Bhoir and Ors.

Bombay HC30 Sept 2016CHS/1907/2011

Case brief

AI extract

What is this about?

The court allowed a Plaintiffs' Chamber Summons seeking amendment to add necessary respondents and paragraphs challenging a Deed of Release. The court held the amendment was imperative to prevent multiple litigations and did not prejudice respondents, though it refused to allow the amendment to relate back for limitation purposes.

What did the court decide?

Amendment to Plaint is allowed; Chamber Summons made absolute; relating back to date of suit refused; no order as to costs.

Mathurabai Kisan Koli and Anr. Vs Latika Bhaskar Bhoir and Ors. — Partition | Bombay HC (2016)

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6-CHS1907-11.DOC

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1907 OF 2011 IN

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SUIT NO. 3851 OF 1990

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Mathurabhai Kishan Koli & Another…Plaintiffs
Versus
Bhaskar Govind Bhoir & Others…Defendants
And
Mohammed Shamim Badgujar & Others...Respondents

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Mr. Shailesh Shah, Senior Advocate , with Mr. Prakash Ganwani, Ms. Soniya Putta, & Ms. Devyani Deshmukh, i/b Solomon & Co., for the Plaintiffs.

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Mr. Joaquim Reis, Senior Advocate , with Mr. Ankur Kalal, i/b Markand Gandhi & Co., for Respondent No. 1.

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Ms. Manjari Shah , with Ms. Radha Kapadia, i/b Thakore Jariwala & Associates, for Respondents Nos. 4 to 6.

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CORAM: G.S. PATEL, J DATED: 30th September 2016

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PC:-

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1.This is the Plaintiffs’ Chamber Summons for amendment. It
seeks to add a number of Respondents and introduced a number of
paragraphs and prayers. The Chamber Summons is opposed by Ms.
Shah for Respondents Nos. 4 to 6 (among the parties proposed to be
joined as party defendants to the suit). These Respondents have

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Page 1 of 4

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30th September 2016

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6-CHS1907-11.DOC

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claimed rights to a certain property inter alia under a Deed of
Release dated 27th April 1997, as also certain other documents. The
Plaintiffs’ case in the amendment is that that Deed of Release
wrongfully and unlawfully binds the Plaintiffs by misusing a Power
of Attorney, and that the Deed of Release is liable to be delivered up
for cancellation.

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2.I do not see how I can prevent the Plaintiffs, who are dominus
litus, from making the plea. If they challenge this document,
obviously Respondents Nos. 4 to 6 are affected, since they trace
their title through that document, and are therefore necessary
parties.

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3.Ms. Shah for these Respondents says that the amendment
sought is mala fide and is meant for the benefit of the 1st
Respondent represented by Mr. Reis. She states that the title
documents relating to property allegedly acquired by the 1st
Respondent from some other Defendants are not sought to be
challenged in these proceedings, but that only her clients have been
singled out.

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4.This is not the stage to consider the merits of the proposed
amendment or the consequences of that amendment. The Plaintiffs
are challenging, by means of this amendment, a document that, if
left outstanding, would bind them. This is one of the very
documents under which Respondents Nos. 4 to 6 draw their title.
Whether as a result of this amendment the 1st Respondent is
affected or unaffected is irrelevant. Prima facie, it seems to me that

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Page 2 of 4

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30th September 2016

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6-CHS1907-11.DOC

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in a partition Suit if the 1st Respondent has derived title from some
of the other Defendants and the rights of these Defendants are
brought into question then evidently the rights of the 1st
Respondent will also be inevitably affected; the 1st Respondent is,
therefore, equally a necessary party, and Mr. Reis does not dispute
this. All these Respondents, including Ms. Shah’s clients, will,
therefore, need to be given a fair opportunity of defending their
respective transactions and their respective titles.

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5.Ms. Shah relies on a decision of the Supreme Court in
Revajeetu Builders & Developers v Narayanaswamy & Sons & Ors.1 to
submit that a mala fide amendment should not be permitted. In my
view, this decision is possibly against Ms. Shah. Apart from anything
else, I believe this amendment is imperative for an effective and
proper adjudication of the case. Granting the amendment will not
prejudice the Respondents. On the other hand, not granting it would
prejudice them considerably. A refusal to allow the amendment
would undoubtedly lead to multiple litigations and possibly in
multiple Courts. In a case such as this there is no question of such
an amendment altering the nature of the case.

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6.I finally note that while some Defendants have filed their
Written Statements, the remaining have not. Issues are yet to be
settled. The Suit is still at a distance from trial.

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7. I will, therefore, allow the amendment.

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1(2009) 10 SCC 84

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Page 3 of 4
30th September 2016

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6-CHS1907-11.DOC

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8.The Chamber Summons is made absolute in terms of prayer
clauses (a) to (c). Amendment to be carried out on or before 21st
October 2016. Copies of the amended Plaint to be served on the
Advocates for the Defendants who have entered appearance on or
before 2nd December 2016 and on the Defendants who are not as
yet represented on or before that date as well. Those Defendants
who have not filed their Written Statements will have till 29th
January 2017 to file their Written Statements.

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9.I come now to the question of whether this amendment
should be allowed to relate back to the date of institution of the Suit.
Given the circumstances and the manner in which at least
Respondents Nos. 4 to 6 claim their title, in my view, it would not be
either appropriate or just to say that the amendment relates back to
the date of the Suit. Merely by virtue of the Chamber Summons
being allowed and the amendment being granted, the amendment is
not to be deemed to relate back to the date of institution of the Suit.
All questions of limitation are expressly kept open, as also all
questions of maintainability.

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10.The Chamber Summons is disposed in these terms. No order
as to costs.

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(G. S. PATEL, J.)

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Page 4 of 4
30th September 2016

Mathurabai Kisan Koli and Anr. v. Latika Bhaskar Bhoir and Ors.

Case brief

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What did the court decide?

Mathurabai Kisan Koli and Anr. v. Latika Bhaskar Bhoir and Ors.

Case brief

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What did the court decide?

What the court decided

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