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2013 DIGILAW 282 (BOM)

Salma Asgarali Makati v. Raj Bucket Factory

2013-02-04

R.M.SAVANT

body2013
JUDGMENT 1. Rule, with the consent of the parties made returnable forthwith and heard. 2. The Writ Jurisdiction of this Court is invoked against the order dated 22-10-2012 passed by the 9th Civil Judge Junior Division, Thane, by which order, the application Exhibit 56 filed by the Respondent No.4 herein for amendment of the Written Statement came to be allowed and resultantly the Written Statement was permitted to be amended in terms of the schedule to the said application so as to incorporate paragraphs 4(a) to 4 (d). 3. The facts necessary to be cited for adjudication of the above Petition can be stated thus: The Suit in question i.e. Special Civil Suit No.379 of 2006 came to be filed challenging the consent decree dated 21-3-2001 passed in Civil Suit No.11 of 2001. The said Regular Civil Suit No.11 of 2001 came to be decreed in terms of the consent terms. The said consent decree was signed by the Respondent No.4 herein and the Power of Attorney of one Sarabai Pachorawala who expired after the said consent terms were filed. The Power of Attorney on the basis of which the consent terms were signed was filed in Court and an application was moved purportedly on behalf of the person who was the Power of Attorney for withdrawal of the Power of Attorney from the Court proceedings. The said application came to be allowed and the Power of Attorney was allowed to be withdrawn from the Court proceedings and replaced by the xerox copy. It seems that the said application for withdrawal of the Power of Attorney from the Court proceedings was filed after the said Sarabai had expired on 6-4-2001. It seems that a Suit bearing No.1777 of 2004 has been filed in this Court for administration of the estate of the deceased Shamsuddin the husband of Sarabai, which is pending. The Petitioners herein who claim to be the heirs of the said Sarabai challenged the consent decree by filing a Writ Petition in this Court being Writ Petition No.6560 of 2005. The said Writ Petition had come up for admission before this Court on 5-10-2005 when this Court was pleased to dispose of the said Writ Petition by directing the Petitioners therein to take such steps as are available for seeking recourse against the said consent decree. The said Writ Petition had come up for admission before this Court on 5-10-2005 when this Court was pleased to dispose of the said Writ Petition by directing the Petitioners therein to take such steps as are available for seeking recourse against the said consent decree. The Petitioners accordingly have filed the said Special Civil Suit No.379 of 2006 challenging the said consent decree dated 21-3-2001, passed in Civil Suit No.11 of 2001. Since the Plaintiffs have attributed a particular role to the Advocate who was appearing on behalf of the said Sarabai and have also levelled certain allegations against him, he was joined as party Defendant No.4 to the said Suit. The role of the said Advocate was restricted to the fact as to on whose instructions the application for taking back the Power of Attorney was filed when the said Sarabai had passed away prior to that. Since the Defendant Nos.1 to 3 who stand to gain under the said consent terms, had not filed their Written Statement on record, had filed an application for setting aside the 'No W.S.' order against them and for being permitted to file the Written Statement. The said application was filed after almost a period of more than 3 years after the receipt of the summons in the said Suit. The said application came to be rejected by the Trial Court by order dated 15-11-2010. The Defendant Nos.1 to 3 i.e. the Respondent Nos.1 to 3 herein challenged the said order dated 15-11-2010 by filing Writ Petition No.540 of 2011 in this Court. This Court dismissed the said Writ Petition on 21-4-2011. Hence in so far as the Defendant Nos.1 to 3 are concerned, they are undefended in the said Suit. 4. In so far as the Defendant No.4 i.e. the Advocate who had appeared on behalf of the said Sarabai in the said Regular Civil Suit No.11 of 2001 is concerned, he had filed his Written Statement on 11-1-2007. In the Written Statement as filed he in paragraph 4 thereof had dealt with the case of the Plaintiffs against him and the allegations which were made against him which revolved around the aspect as to on whose instructions the application for withdrawal of the Power of Attorney was filed. The said paragraph 4 is reproduced herein under for the sake of convenience. “4. The said paragraph 4 is reproduced herein under for the sake of convenience. “4. With reference to para No.3 of the plaint, it is true that the 4th Defendant is practicing Advocate in the Court of Thane. It is true that the above named defendant filed vakalatnama dated 15-3-2001 but is not aware about the details of alleged power of attorney dated 15-3-2001 and date of presentation in the court, and puts to the plaintiffs to the strict proof thereof. This defendant is not aware that the defendant Sarabai expired on 06-04-2001 and puts the plaintiff to the strict proof thereof. It is further denied that on 2nd August 2003 i.e. twenty seven months after the death of the said Sarabai, the 4th defendant presented and filed hand written application to the court stating that the defendant Sarabai wants to withdraw the said impugned power of attorney. This defendant submits that he was/is not aware about the death of the said Sarabai as pointed out in this plaint dated 06.04.2001 nor any one pointed out to this defendant that said Sarabai expired on 06.04.2001. This defendant submits that the power of attorney holder must have approached to this defendant and this defendant after coming to the conclusion that real power of attorney holder has approached for withdrawal of the document of power of attorney, has preferred an application for taking the document returned from the court, and the power of attorney holder must have signed on the application when the original was taken from the court by keeping the xerox thereof. This defendant submits that he is unnecessarily made party in the present suit. Hence the suit of the plaintiffs deserves to be dismissed with cost.” 5. The Respondent No.4 thereafter i.e. on 24-2-2012 filed an application for amendment of the Written Statement as indicated above by the said amendment the Respondent No.4 was seeking to incorporate paragraph Nos.4(a) to 4(d). This defendant submits that he is unnecessarily made party in the present suit. Hence the suit of the plaintiffs deserves to be dismissed with cost.” 5. The Respondent No.4 thereafter i.e. on 24-2-2012 filed an application for amendment of the Written Statement as indicated above by the said amendment the Respondent No.4 was seeking to incorporate paragraph Nos.4(a) to 4(d). The said paragraph Nos.4(a) to 4(d) are reproduced herein under - 4(a) The plaintiffs have suppressed material facts from this Hon'ble Court and has not disclosed to the Hon'ble Court the proceedings viz RCS No.406/1978 and Civil Appeal No.311/1982 in Thane District Court by which the suit property were held to be the property of M/s Raj Bucket registered as Partnership Firm and thus for more than 23 years the plaintiffs have not challenged the said order passed in the above proceedings. 4(b) The decree passed in SPCS No.11/2001 merely reconfirms the position as settled by earlier suits. The plaintiffs has suppressed the fact that the original firm M/s Raj Bucket Factory was in the year 1946 and it was dissolved on 30/6/1991 through M/s Zaldi and Co. and it was reconstituted by regsitration no. BA 57 through M/s. Zaldi and Co with effect from 1/7/1991, who is known to be advocates of Defendant No.1 and 2 and deceased Shamshuddin S Pachorawala. 4(c) It is further submitted that it has been revealed that all along till this time the properties mentioned in the name of Raj Bucket factory were of the partnership firm and treated as partnership firm properties without objection from anybody. There are various such orders, correspondence and ULC orders about the properties being the properties of the firm. And thus it is clear from the various property cards, Deeds, Agreements, Index II, Records, Audit records that the properties has been throughout the properties of M/s. Raj Bucket Factory. 4(d) The Plaintiffs had also suppressed the fact of earlier M/s Raj Sheet Engineering works and about the dealings of other properties being the Flat at Bandra, purchased by Bakir Shaikh, Plaintiff no.2 from the funds of M/s. Raj Bucket Factory. The land at Pachor District Jalgaon was also purchased from the funds of M/s. Raj Bucket Factory. Moreover, there are various declarations and releases executed being Deed of resolution dated 25/07/1979, Declaration of Plaintiff no.2 dated 25/06/1979. The land at Pachor District Jalgaon was also purchased from the funds of M/s. Raj Bucket Factory. Moreover, there are various declarations and releases executed being Deed of resolution dated 25/07/1979, Declaration of Plaintiff no.2 dated 25/06/1979. It is also learnt that Defendant No.5 Sadikbhai Shaikh had obtained benefit from M/s Raj Bucket Factory and settled at Bangalore. And there are notices issued dated 26/4/1991, dated 28/6/1991, dated 29/7/1991 through M/s Zaldi and Co. and also partnership deed dated 20/9/1991. There were also various transactions between the family members of Plaintiff and there was a suit No.1777 of 2004 which mentions about the disposal of properties and various other family arrangements and also were dealing among the family members about the Flats, Ornaments etc and ultimately whatever property stands in the name of M/s Raj Bucket Factory and assets of the said Company and as such the Consent Terms produced did not make out any contrary case as there is no justification in making any allegations of fraud and the Plaintiffs have suppressed all these facts which shows that the Plaintiffs suit is false.” 6. The said application was opposed on behalf of the Plaintiffs by filing their reply. In paragraph 2 of the reply, the Plaintiffs have averred that the case sought to be now incorporated by way of the amendment is beyond the scope of the case of the Plaintiffs against the Respondent No.4. In paragraph 5 it has been averred that the said amendment sought is to assist the Defendant Nos.1 to 3 who have now no scope to participate in the Suit. The Trial Court considered the said application and has by the impugned order dated 22-10-2012 has allowed the same. It appears that since the ground of the Trial having already begun was not taken by the Plaintiffs in reply to the said amendment application, the Trial Court did not consider the said ground. The Trial Court allowed the said application by observing that since the Trial has not begun and since the amendment does not change the nature of the Suit, the same is required to be allowed. As indicated above, the Trial Court by the impugned order has allowed the same. It is the said order dated 22-10-2012 which is impugned in the present Petition. 7. Heard the Learned Counsel for the parties. The Learned Counsel appearing for the Petitioner Mr. As indicated above, the Trial Court by the impugned order has allowed the same. It is the said order dated 22-10-2012 which is impugned in the present Petition. 7. Heard the Learned Counsel for the parties. The Learned Counsel appearing for the Petitioner Mr. Patil would reiterate the case of the Plaintiffs in the reply filed to the amendment application and would contend that the amendment sought in the Written Statement is nothing but an attempt to assist the Defendant Nos.1 to 3 who are undefended in the Suit. The Learned Counsel would contend that the amendments now sought to be incorporated are beyond the case of the Plaintiffs against the Respondent No.4 8. Per contra Mr. Mody the Learned Counsel appearing for the Respondent No.4 would justify the amendments sought as also justify the order passed by the Trial Court. The Learned Counsel would contend that the said amendments are necessitated in view of the case of the Plaintiffs in the said Suit. The Learned Counsel would seek to buttress his submissions by seeking to rely upon the Judgment of the Apex Court reported in (2007) 5 SCC 602 in the matter of Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. wherein the Apex Court has distinguished between an application for amendment of the plaint and an application for amendment of the Written Statement. The Apex Court has observed that the application for amendment of the Written Statement different consideration would apply as the Defendant is also entitled to take contrary pleas. 9. Having heard the Learned Counsel for the parties, I have bestowed my anxious consideration to the rival contentions. As indicated herein above, the Plaintiffs have challenged the consent decree on the basis of which Regular Civil Suit No.11 of 2001 came to be disposed of. There is no dispute about the fact that the Respondent No.4 was an Advocate appearing for the said Sarabai in the said suit. The said Sarabai was the Defendant No.1 in the said Suit. The role of the Respondent No.4 is limited to the fact that as to who had instructed him to file the application for withdrawal of the Power of Attorney which came to be ultimately allowed to be withdrawn by an order passed by the Trial Court. The said Sarabai was the Defendant No.1 in the said Suit. The role of the Respondent No.4 is limited to the fact that as to who had instructed him to file the application for withdrawal of the Power of Attorney which came to be ultimately allowed to be withdrawn by an order passed by the Trial Court. It is in the context of the said case of the Plaintiff against him that the Respondent No.4 had filed his Written Statement. The sum and substance of the defence of the Respondent No.4 is mentioned in paragraph 4 of the Written Statement which has been reproduced herein above in the earlier part of this Order. However, the Respondent No.4 thereafter has moved the amendment application on 22-2-2012. By the said amendment application he seeks to incorporate paragraph Nos.4(a) to 4(d). The averments in the said paragraphs 4(a) to 4(d) do not concern the Respondent No.4 at all and probably concern the Plaintiffs and the Defendant Nos.1 to 3. How the said averments which are now sought to be incorporated are relevant for the purposes of the defence of the Respondent No.4 herein, therefore begs an answer. The Respondent No.4 as can be seen from the averments is seeking to incorporate facts dating back to the year 1946 as also the facts relating to certain financial transactions entered into by the Respondent No.1 i.e. Raj Bucket Factory, and the funding of certain transactions by the Respondent No.1 in my view, the said facts have no relevance in so far as the defence of the Respondent No.4 is concerned. The said facts could have only been within the knowledge of the Respondent Nos.1 to 3. The filing of the amendment application after the Writ Petition filed by the Respondent Nos.1 to 3 i.e. the Respondent Nos.1 to 3 came to be dismissed by this Court therefore lends credence to the argument of the Learned Counsel for the Petitioner that the said application was filed by the Respondent No.4 just to assist the Respondent Nos.1 to 3 herein i.e. the Defendant Nos.1 to 3 who have not been permitted to file their Written Statement. The Trial Court as can be seen has without considering the aforesaid aspects has allowed the amendment application by merely observing that the said amendments do not change the nature of the Suit or the defence of the Respondent No.4. The Trial Court as can be seen has without considering the aforesaid aspects has allowed the amendment application by merely observing that the said amendments do not change the nature of the Suit or the defence of the Respondent No.4. It was incumbent on the part of the Trial Court to consider whether averments now sought to be incorporated have any relevance in so far as the case as originally pleaded by the Respondent No.4 in his Written Statement. In fact as can be seen from the original Written Statement, the Respondent No.4 has questioned the need of he being a party to the above proceedings. If that be so, there was no justifiable reason for the Respondent No.4 to now seek amendment of his Written Statement so as to incorporate paragraphs 4(a) to 4(d). This can only be attributed to the fact that the same was moved so as to assist the Defendant Nos. 1 to 3 to defend the Suit in question. In so far as the Judgment of the Apex Court is concerned, the same would have no application in the facts and circumstances of the case, as in the instant case, the Defendant No.4 is not taking any contrary stand or seeking to amplify the stand that he has already taken but is trying to incorporate new facts which have no relevance in so far as his defence is concerned. In my view therefore the Trial Court has committed an error and threreby exceeded its jurisdiction in allowing the said amendment application. The impugned order therefore requires interdiction at the hands of this Court in its Writ Jurisdiction under Article 227 of the Constitution of India. The impugned order dated 22-10-2012 is therefore required to be quashed and set aside and is accordingly quashed and set aside. 10. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.