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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, J.
Hemlata Harish Bhatia - Appellant
Versus
Vallabhdas Lalchand Dhamanmal - Respondent
Writ Petition No. 4346 of 2017
Decided On : 22-12-2018
Constitution of India Article 227 – Code of Civil Procedure, 1908 – Order VI Rule 17 – Gift Deed - Impugned the order - Notice of Motio - Writ petition filed under Article 227 of the Constitution of India, the petitioners have impugned the order passed by learned City dismissing the Chamber Summons filed by the petitioners (original plaintiffs) under Order VI Rule 17 of the Code of Civil Procedure, 1908 – Some of the relevant facts for the purpose of deciding petitioners filed a suit for partition along with Notice of Motion before this Court, this Court granted ad-interim reliefs in favour of the petitioners on the statement made by the respondent said Notice of Motion was however, withdrawn by the petitioners the respondent no.1 and another executed a Sale Deed in respect of the plot located, the respondent executed a Gift Deed in respect of his share in a bungalow located at Kandivali (West) in favour of the respondent filed his written statement placing on record the execution of the Sale Deed and the Gift Deed the respondent and late filed their written statement and confirmed the execution of the Sale Deed and the Gift Deed by the respondent in their favour – Held, Insofar as the submission of the learned counsel for the respondents that none of the judgments referred to and relied upon by the petitioners would assist the case of the petitioners and are distinguishable on the ground that all those judgments were delivered prior to the date of amendment to Order VI Rule 17 of the Code of Civil Procedure, 1908 in the is concerned, there is no merit in this submission of the learned counsel for the respondents – petitioners having satisfied this Court that despite due diligence, the petitioners could not have applied for amendment so as to impugn the subsequent transactions effected during the pendency of the suit, court inclined to interfere with the impugned order passed by the learned trial Judge rejecting the chamber summons filed by the petitioners – Perusal of the impugned order passed by the learned trial Judge indicates that the learned trial Judge has rejected the said chamber summons mainly on the ground of alleged delay and on the ground that the application for amendment was made post commencement of trial and there would be change of cause of action if such amendment would have been permitted, the entire basis of the impugned order rejecting the chamber summons filed by the petitioners is based on a wrong factual premise. In my view, the impugned order is contrary to the principles of law laid down by the Honble Supreme Court, this Court and various other Courts on which judgments reliance is placed by the learned counsel for the petitioners and thus deserves to be quashed and set aside – petitioners is allowed.
JUDGMENT
R.D. Dhanuka, J. - By this writ petition filed under Article 227 of the Constitution of India, the petitioners have impugned the order dated 17th November, 2016 passed by the learned City Civil Court, Greater Mumbai, dismissing the Chamber Summons No.1362 of 2015 filed by the petitioners (original plaintiffs) under Order VI Rule 17 of the Code of Civil Procedure, 1908. Some of the relevant facts for the purpose of deciding this writ petition are as under :
2. On 13th January, 2014, the petitioners filed a suit for partition along with Notice of Motion No.502 of 2004 before this Court. On 16th March, 2004, this Court granted ad-interim reliefs in favour of the petitioners on the statement made by the respondent no.1. The said Notice of Motion No.502 of 2004 was however, withdrawn by the petitioners on 10th December, 2004. On 23rd January, 2006, the respondent no.1 and another executed a Sale Deed in respect of the plot located at Kandivali (West). On 12th May, 2006, the respondent no.1 executed a Gift Deed in respect of his 1/3rd share in a bungalow located at Kandivali (West) in favour of the respondent no.2.
3. On 29th November, 2007, The respondent no.1 filed his written statement placing on record the execution of the Sale Deed dated 23rd January, 2006 and the Gift Deed dated 12th May, 2006. On 17th December, 2009, the respondent No.2 and late Padmini Vallabhdas Dhamanmal filed their written statement and confirmed the execution of the Sale Deed and the Gift Deed by the respondent no.1 in their favour.
4. Some time in the year 2012, the said suit filed by the petitioners was transferred to the City Civil Court. On 14th January, 2013, the Bombay City Civil Court framed the issues in the said suit. On 3rd August, 2013, the said suit was dismissed for want of prosecution. Some time in the month of November - December, 2013, the petitioners changed their advocates before the Bombay City Civil Court. On 4th December, 2013, the present advocate appeared for the petitioners for the first time before the Bombay City Civil Court and filed the notice of motion for restoration of the suit. On 14th August, 2014, the said suit was restored by the Bombay City Civil Court.
5. On 22nd February, 2015, the petitioner no.1 (original plaintiff no.1) tendered her affidavit of evidence. On 24th July, 2015, the learned advocate for the petitioners sought time for filing further affidavit in lieu of examination in chief of the plaintiff no.1. On 30th December, 2015, the petitioner no.1 filed the Chamber Summons (1362 of 2015) inter-alia praying for the amendment of the plaint. On 11th March, 2016, the respondent no.2 filed a reply opposing the said chamber summons. On 27th July, 2016, the petitioner no.1 filed her affidavit in rejoinder. On 23rd August, 2016, the respondent no.2 filed a sur-rejoinder. On 17th November, 2016, the said chamber summons filed by the petitioners for seeking amendment to the plaint came to be rejected. Being aggrieved by the said order dated 17th November, 2016, the petitioners filed this writ petition under Article 227 of the Constitution of India.
6. Mr.Ankit Lohia, learned counsel appearing for the petitioners invited my attention to the various documents annexed to the writ petition and also various affidavits filed by the parties and also the impugned order passed by the learned Trial Judge. He also invited my attention to the Schedule appended to the chamber summons which came to be dismissed by the learned Bombay City Civil Court.
7. It is submitted that the said suit was admittedly filed by the petitioners for partition of various properties. He submits that during the pendency of the said suit, the defendant no.1 has transferred his alleged right, title and interest in the suit property in favour of the defendant no.3. The petitioners came to know about the execution of the Gift Deed dated 12th May, 2006 and the Sale Deed dated 23rd January, 2006 only when the respondents filed the written statement bef
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