Suit No.3452 of 2004

5th December, 2008

Petitioner Counsel: Mr. M. S. DOCTOR,Bachubhai & Munim
Respondent Counsel: Mr. G. S. GODBOLE,Mrs. CHANDNA SALGAONKAR-RADIA

Cases Cited:
Panchdeo Narain Srivastava Vs. K. M. Jyoti Sahay, 1984 (Supp) SCC 594 [Para 11]
M/s. Modi Spinning & Weaving Mills Co. Ltd. Vs. M/s. Ladha Ram & Co., (1976)4 SCC 320 [Para 12]
Heeralal Vs. Kalyan Mal, (1998)1 SCC 278 [Para 12]
Rasiklal Manikchand Dariwal Vs. Kishore Wadhwani And Ashok Wadhwani, 2005(3) ALL MR 481=2005(3) Bom.C.R. 104 [Para 12]
Mooljee Lukhmidas Vs. S. M. Kapadia, 2006(3) ALL MR 52=2006(6) Bom.C.R. 443 [Para 12]

JUDGMENT

JUDGMENT :- This is a Chamber Summons for carrying out certain amendments in the Plaint. The amendments have arisen for 2 purposes : (i) to bring a new party (Respondent) on record as Defendant No.6 and (ii) to amend certain averments in the Plaint. The Suit, as initially filed, was between the Plaintiff and Defendant No.1 alone. The Suit was filed upon a Memorandum of Understanding executed between the parties for development of the suit property. Defendant No.1 was to make out a marketable title. Two certificates of certain Advocates were produced. The Plaintiff was not satisfied with the marketability of the title of Defendant No.1. The Plaintiff sought to cancel the contract and sought refund the earnest amount. The Plaintiff has also sought to create a charge on the suit property under the provisions of Section 55(6)(b) of the Transfer of Property Act, 1882.

2. Defendant Nos.2 to 5 claim to have title to the suit property. They applied to be brought on record and are accordingly brought on record of the Suit. Defendant Nos.2 to 5 have now transferred their interest to Defendant No.6. The Plaintiff claims that Defendant No.6 is in terms a stooge of Defendant No.1. The Plaintiff has sought to bring Defendant No.6 on record as the successor-in-title of Defendant Nos.2 to 5 who themselves chose to be party Defendants and thereafter created interest in the suit property in pursuance of the title claimed by them.

3. In view of these facts, Defendant No.6 becomes a proper party to the Suit as the reliefs, if any, which would be passed in favour of the Plaintiff, would have to be passed after considering the interest shown by Defendant No.6. In the interest of Defendant No.6 itself, Defendant No.6 has to be brought on record. The Respondent, though served, has not appeared and challenged this Application. Consequent upon bringing the Respondent on record as Defendant No.6, consequential amendments to show who precisely Respondent No.6 is, would also have to be made in the Plaint. Consequential amendments are sought to be made at the end of paragraph 2 of the Plaint. Hence adding the Respondent as Defendant No.6 in making consequential amendments with regard thereto would have to be allowed.

4. The other part of the amendment is for certain amendments in paragraphs (ii), (v) and (xi) of paragraph 16 of the Plaint.

5. It has been the Plaintiff's contention that Defendant No.1 did not have a clear and marketable title which he was supposed to make out. What Defendant No.1 sought to make out under the Title Certificate is what is generally called "clear and marketable title" .

6. Title, if any, of any party is required to be marketable. What is clear and marketable title has been averred and specified in other portions of the Plaint by the Plaintiff.

7. Paragraph 16(ii) shows the Plaintiff's averment that no Title Certificate till date has been produced by Defendant No.1 as evidently Defendant No.1 has no title in respect of the suit land, much less any clear or marketable title. This paragraph is sought to be corrected to show that no Title Certificate has been produced by Defendant No.1 as there is no clear and marketable title as specifically set out in paragraph 10 of the Plaint. Paragraph 10 of the Plaint avers about the lack of marketability title.

It can be seen that what the Plaintiff proposes to aver Is much the same as what the Plaintiff has averred albeit in different words. It does not change the purview of the cause of action or the reliefs claimed by the Plaintiff upon the submissions made by the Plaintiff.

8. Paragraph 16(v) shows that far from Defendant No.1 being the owner of the property, the Title Certificate produced by the Defendants shows that certain third parties are owners of the suit property. The Plaintiff now desires to add further that those third parties are shown to be owners not of the entire suit property but of certain portions thereof.

This amendment tantamounts to a clarification of the averment made. It is not de hors the averments initially made.

9. Paragraph 16(xi) shows the Plaintiff's averment that Defendant No.1 has nothing to do with the suit property as far as the title is concerned. The amendment seeks to show that Defendant No.1 does not have a clear and marketable title, a fact of which has been off repeated in the Plaint.

10. These amendments have been opposed on the ground that they enabled the Plaintiff to withdraw from their admissions. The admission, as shown in these paragraphs, is that Defendant No.1 does not have any clear and marketable title. Since the Plaint is required to be a brief, precise and concise statement of facts, these facts need have been stated once. The Plaintiff has however chosen to state it again and again. A reading of all the paragraphs shows but one fact that the Plaintiff contends that the title sought to be shown by Defendant No.1 as clear and marketable title is in fact not clear and marketable title so that the Plaintiff is not enjoined to perform the other obligations under the written Agreement with Defendant No.1. There is no departure from this basic premise of the Plaintiff in the amendments.

11. In the case of Panchdeo Narain Srivastava Vs. K. M. Jyoti Sahay & anr., 1984 (Supp) SCC 594, a party who sued as "uterine" brother was allowed to drop the word "uterine" and sue as a full brother. It was held : "an admission made by a party may be withdrawn or explained away."

12. Certain judgments are shown to me in support of the contention that the party cannot withdraw from his own admissions by way of making amendments. These judgments are :

(i) M/s. Modi Spinning & Weaving Mills Co. Ltd. & anr. Vs. M/s. Ladha Ram & Co., (1976)4 SCC 320;

(ii) Heeralal Vs. Kalyan Mal & ors., (1998)1 SCC 278;

(iii) Rasiklal Manikchand Dariwal & ors. Vs. Kishore Wadhwani And Ashok Wadhwani, 2005(3) Bom.C.R. 104 : [2005(3) ALL MR 481];

(iv) Mooljee Lukhmidas Vs. S. M. Kapadia, 2006(6) Bom.C.R. 443 : [2006(3) ALL MR 52].

The case of M/s. Modi Spinning & Weaving Mills (supra) specifically shows how a party initially shown to be a hire purchaser is later shown to be an agent. Both the rights and liabilities that accrued upon any agency, which are completely different from a contract between a principal and principal, would be different and the entire perspective of the defence would change. The same analogy does not apply to this case. The clarification of what the Plaintiff has said, though repeated, does not make out a new case.

13. The amendments are, therefore, required to be allowed. The Chamber Summons is made absolute in terms of prayer (a). The Plaintiff shall carry out amendments within 2 weeks. The Plaintiff shall also amend the copy of the Plaint served upon Defendants 1 to 5 within 2 weeks. The Plaintiff shall serve the amended writ of summons upon the Respondent as Defendant No.6.

14. Certain interim reliefs have been granted pending this Chamber Summons and since earlier Interim Application taken out by the parties. The adinterim relief has been extended by the Appeal Court.

15. The ad-interim order shall continue for a period of 2 weeks. The order of amendment is stayed for 2 weeks.

Ordered accordingly.