The Trustees of the Port of Bombay v. Miss Jyotsna B. Kothari & Ors.

Mr.U.J. Makhija, Sr.Counsel with Mr.Parag Khandhar i/b. M/s.Mulla & Mulla & Craigie Blunt & Caroe for the Plaintiff. Mr.D.H.Mehta with Mr.D.D. Mehta i/b. M/s.D.M. Legal Associates for the Defendants. CORAM : V.M. KANADE, J. DATED : JANUARY 22, 2010 P.C. :- 1 2 Heard. This Chamber Summons is taken out by the plaintiff seeking amendment of the plaint in terms of the schedule annexed to the Chamber Summons. By 2 the said amendment, the plaintiff seeks to change the title of the plaint with the words (cid:28) Board of(cid:29) in between the words (cid:28) The Trustees(cid:29) and in para 3 for deletion of the words (cid:28) and further compensation(cid:29) and addition of a paragraph stating therein that the plaintiffs are also entitled to mesne profits and/or damages under Order XX Rule 12 of the Code of Civil Procedure, 1908 in respect of the suit premises at the rate of 120.50 per square meter per month and any other rate applicable from time to time till quiet vacant and peaceful possession of the said premises is handed over to the plaintiff and for deleting the words (cid:28) and further compensation at the same rate from 1st July 1970 until delivery of possession of the said premises(cid:29) in the prayer clause (b) and for adding prayer clause (e-1) for claiming mesne profits.

3 The learned Counsel for the plaintiff submitted that in the similar suit filed by the Boards against similarly placed defendant, chamber 3 summons was allowed by the learned Single Judge of this Court by its order dated June 9, 2009 (Coram : A.M. Khanwilkar, J.) in Suit No.1154/1974 which order was challenged by the defendant therein and appeal was dismissed. However, the Appellate Court held that the said amendment would be subject to objection on the ground of limitation. It was submitted that instead of seeking damage, the plaintiff is seeking mesne profits and therefore, there was no change in the cause of action and no prejudice was caused to the plaintiff. 4 On the other hand, Shri Mehta, learned Counsel for the defendants submitted that by trying to introduce a claim of mesne profits, the plaintiff was trying to introduce a new cause of action. He submitted that when the suit was filed, the plaintiff could not have claimed mesne profits since it was barred by the law of limitation and since the plaintiff was aware of this fact, it is submitted that the plaintiff should not be permitted 4 now to amend the plaint and introduce a new cause of action.

He submitted that the said amendment was bound to cause prejudice to the defendants since in the earlier suit, the compensation was claimed at a fixed rate and by the present amendment, the plaintiff would claim an indefinite amount by claiming damages. He relied on the judgment of the Apex Court in Vidyabai and others vs. Padmalatha and another ((2009) 2 SCC 409) 5 In my view, there is much substance in the submission made by the learned Counsel for the defendants. The plaint is sought to be amended by introducing a new cause of action viz. mesne profits under Order XX Rule 12 by substituting claim for damages which was at a fixed rate. Apart from that, it has to be noted that the suit was filed by the plaintiff in 1970 and 40 years have passed after filing of the suit. Admittedly, the parties have examined witnesses who in turn have been cross- examined. Permitting the plaintiff to now amend the 5 plaint would cause further delay in disposal of the suit.

The plaintiff could have very well made those prayers at the time of filing of the suit. No explanation has been given as to why an application for amendment is not filed till 2009. There is also some substance in the submission made by the defendants that by introducing claim for mesne profits, virtually, a new claim is made by the plaintiff against the defendants which definitely is not a consequential claim. The only ground which was urged for the delay caused in filing the application for amendment is that the parties were trying to settle the dispute. 6 So far as the judgment of the learned Single Judge in Suit No.1154 of 1974 and order passed in appeal is concerned, in my view, though the orders are passed under the facts and circumstances in that case and it cannot said that the said orders are binding on this court taking into consideration the gross delay in filing this 6 chamber summons and since the chamber summons obviously is barred by limitation, the question of permitting the plaintiff to amend subject to the objection of limitation does not arise. 7 Chamber Summons, accordingly, is dismissed.

(V.M. KANADE, J.)