Case Note & Summary
The dispute arose from a long-pending partition suit concerning properties claimed as Hindu Undivided Family (HUF) properties. The plaintiffs had instituted S.C. Suit No. 9984 of 1991, originally High Court Suit No. 1212 of 1991, seeking declaration of properties as HUF properties and partition by metes and bounds. The suit properties included land bearing Survey No.151A situated at Village-Nahur, Mumbai Suburban District. By an indenture dated 14 January 1971, the land was transferred by Ratansey Karsandas and others (Khots of Bhandup) to Bafna Charitable Trust. The plaintiffs deliberately did not implead Bafna Charitable Trust as a defendant to avoid misjoinder, even though they sought declaration that Survey No.151A was joint family property and sought partition thereof. A Court Receiver was appointed over the suit properties. Bafna Charitable Trust filed Notice of Motion No. 3479 of 2004 under Order 40 Rule 1(2) of the Code of Civil Procedure, 1908 seeking deletion of Survey No.151A from the suit and discharge of the Court Receiver. By order dated 1 August 2008, the High Court allowed the notice of motion, directing deletion of Survey No.151A from the suit and discharging the Court Receiver, with liberty to the plaintiffs to adopt appropriate proceedings against Bafna Charitable Trust. That order attained finality after the Division Bench dismissed the appeal on 17 October 2008 and the Supreme Court dismissed SLP (C) No. 11531 of 2009 on 14 May 2009. On 28 October 2009, Bafna Charitable Trust conveyed the plot of land in Survey No.151A to Respondent No.72, M/s. Atul Builders and Estates Ltd. The plaintiffs then filed Chamber Summons No. 718 of 2010 seeking to amend the plaint to implead the Trust and seeking a declaration that it had no right in Survey No.151A. They filed another Chamber Summons No. 1089 of 2011 seeking impleadment of Atul Builders and similar relief. By order dated 12 August 2011, the High Court dismissed both chamber summons. On appeal, by consent order dated 1 December 2011, the order was set aside and the chamber summons were remanded for fresh consideration. The suit was transferred to the City Civil Court in 2012 and renumbered S.C. Suit No. 9984 of 1991. By common order dated 14 September 2015, the City Civil Court dismissed both chamber summons. Aggrieved, the petitioners, who are original plaintiff Nos.1(a) to 1(d), filed the present writ petition. The petitioners argued that the City Civil Court erred in dismissing the chamber summons, that there were inconsistencies in the order because it rejected limitation as a ground but dismissed on delay of 20 years, that the earlier order granted specific liberty to adopt appropriate proceedings, and that the amendment was pre-trial and should be liberally allowed. They relied on Life Insurance Corporation of India v. Sanjeev Builders Private Limited, Ganeshmull Surana v. Nagraj Surana, and Chinaswamy Naidu v. Amsaveni Ammal. They contended that limitation was a mixed question of law and fact not to be decided at amendment stage and that they were not questioning alienation but seeking declaration of joint family property. Respondent Atul Builders opposed the petition, arguing that the proposed amendments were hopelessly time-barred under Article 58 of the Limitation Act, 1963 because the alienation occurred on 14 January 1971 and the plaint averments showed knowledge, and that the impugned order was well-considered. The provided judgment text does not include the final operative decision of the High Court on the writ petition.
Headnote
A) Civil Procedure - Amendment of Plaint - Pre-trial Amendment and Impleadment - Code of Civil Procedure, 1908 (amendment provisions) - Petitioners sought amendment of plaint to implead Bafna Charitable Trust and its assignee Atul Builders as defendants and to seek declaration that they have no right in land Survey No.151A. Petitioners contended that amendment, being pre-trial, should be liberally allowed and would not change the nature of the suit; they relied on Life Insurance Corporation of India v. Sanjeev Builders Private Limited. The City Civil Court dismissed the chamber summons, leading to the present writ petition. (Paras 7-8) B) Limitation - Bar of Limitation - Article 58 of Limitation Act, 1963 - Respondent Atul Builders contended that proposed amendments challenging alienation of land in 1971 were hopelessly time-barred under Article 58, as plaintiffs had knowledge of the alienation as per plaint averments; petitioners countered that limitation is a mixed question of law and fact not to be determined at the amendment stage and that they were not questioning alienation but seeking a declaration of joint family property. (Paras 8-9) C) Civil Procedure - Court Receiver and Deletion of Property - Order 40 Rule 1(2), Code of Civil Procedure, 1908 - Earlier order dated 1 August 2008 allowed deletion of land Survey No.151A from the suit and discharged the Court Receiver, granting liberty to plaintiffs to adopt appropriate proceedings against Bafna Charitable Trust; that order attained finality after dismissal of appeal and SLP. This procedural backdrop framed the later amendment applications. (Paras 3-4)
Issue of Consideration
Whether the City Civil Court erred in rejecting Chamber Summons Nos. 718 of 2010 and 1089 of 2011 for amendment of the plaint to implead Bafna Charitable Trust and Atul Builders and to seek a declaration that they have no right in Survey No.151A; whether such proposed amendments were barred by limitation; and whether the earlier deletion of Survey No.151A from the suit and grant of liberty precluded the amendments.
Law Points
- Amendment of plaint
- pre-trial amendment liberality
- limitation under Article 58
- misjoinder and non-joinder
- partition of Hindu Undivided Family property
- coparcener right to challenge alienation
- principle that limitation is mixed question of law and fact
- effect of final order deleting property from suit
