Amendments to pleadings should be allowed if necessary for determining the real controversy between the parties and not inconsistent with existing pleadings. However, amendments introducing new causes of action or changing the fundamental nature of the suit should not be allowed.

JUDGMENT

1. With consent, matter is heard finally at the stage of admission.

2. The Petitioners, who are the Defendant Nos.1 and 2 in the suit (hereinafter referred to as Defendants) have challenged the impugned order dated 17.02.2021, passed by the learned Judge, City Civil Court, Gr. Bombay allowing the Chamber Summons No.1236 of 2016 for amendment of the plaint as per the schedule.

3. Mr. Devani, learned counsel submits that by amendment as proposed in Clause E, the Respondent Nos.1 and 2 (hereinafter referred to as the Plaintiffs) have sought declaration that certain clauses of the Agreements executed between the members of the Plaintiff No.1 society and the Defendants are illegal, void, ab-initio and not binding upon the members. He submits that the said Agreements were executed some time in the year 1976. The Plaintiffs/members were in possession of these Agreements and there is no explanation for seeking such relief at a belated stage. He submits that the relief of declaration is ex-facie barred by law of limitation and such preliminary objection could not have been relegated to the stage of trial. He therefore submits that the impugned order is unsustainable. Reliance is placed on the decision of FGP Ltd. vs. Saleh Husseini Doctor & Anr 2014 (6) ABR 124 to contend that when the Plaintiff does not approach the Court with clean hand and does not explain the delay, then such belated application for amendment deserves to be rejected.

4. Learned Counsel for the Defendants further submits that the Plaintiffs have relied on several documents, proposed Exhibits Ml to M12, which were always in their possession and within their knowledge. If any cause of action had accrued on the basis of the said documents, the said documents ought to have been produced along with the suit. He further submits that the Plaintiffs are seeking to introduce a new cause of action which is unconnected and irrelevant to the suit. It is stated that right once accrued in favour of the Defendants, cannot be defeated by way of amendment. The learned Judge was therefore not justified in allowing the chamber summons.

5. Learned counsel for the Defendants further submits that an attempt is made to convert the interim relief in prayer clauses (d) to (h) into final relief after lapse of 12 years. It is contended that such reliefs as on the date of amendment are barred by law of limitation, and as such the learned Judge was not justified in allowing the Plaintiffs to convert the prayers for interim relief into final relief. Reliance is placed on the decision of Ashutosh Charutvedi v/s. Prano Devi & Ors. 2008 (15) SCC 610.

6. Learned counsel for the Defendants further submits that by the proposed amendment, the Plaintiffs have sought to introduce new facts and seek additional reliefs solely on the basis of new cause of action. Reliance has been placed on the decision of the Honourable Supreme Court in the case of Revajeetu Builders and Developers vs. Narayan Swami & Sons. (2009) 10 SCC 98 to contend that the basic test which should govern the Courts discretion in granting or refusal of the amendment is whether such amendment is necessary for the determination of the real question in controversy. Learned counsel for the Defendants states that the plaint is sought to be amended after a lapse of 12 years by blaming the erstwhile lawyer for not bringing on record the relevant facts. It is contended that the proposed amendment is malafide and allowing the application has caused prejudice to the Defendants.

7. It is further stated that the issues were settled in November 2014 and the matter was listed for recording of evidence. Since the trial in the matter had already commenced, the proposed amendment could not have been allowed, particularly when the Plaintiffs had failed to establish due diligence. Reliance is placed on the decisions of Apex Court in Revanna vs. Anjanamma (Dead) By Lrs. & Ors. (2019) 4 SCC 332; Vidyabai & Ors. vs. Padmalatha (2009) 2 SCC 409; Chander Kant