Bombay High Court
Sahara India Commercial ... vs M/S. B. Jeejeebhoy Vakharia & on 22 April, 2009
Bench: S.B. Mhase, A.A. Sayed
1
I N THE H IGH COURT OF JUDICATURE AT BO MBAY
ORDI NARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 7 8 OF 2 0 0
IN
CHA MBER SU M M O NS NO. 5 8 7 OF 2 0 0 7
IN
SUIT NO. 3 3 7 6 OF 2 0 0 5
SAHARA INDIA COMMERCIAL CORPORATION LTD. ]
a company registered under the provisions ]
of Companies Act, 1956 and having its ]
registered office at Sahara India Sadan, ]
2A, Shakespeare Sarani, Kolkatta-700 071. ]
and having one of its branch offices at ]
CTS No.40-44, S.V.Road, Goregaon (West)
ig ]
Mumbai - 400 014. ].. Appellants
Versus
1. M/s. B. JEEJEEBHOY VAKHARIA & ]
ASSOCIATES, a partnership fir m ]
registered under the provisions of ]
Indian Partnership Act,1932 and having ]
its office at 83, Jolly Maker Chambers ]
II, Nariman Point, Mumbai-400021. ]
2. MADHUSUDAN BRIJLAL VAKHARIA, ]
of Mumbai, Indian inhabitant, residing ]
at 1601, Veena Towers, Opp. Colaba ]
Post Office, Colaba, Mumbai - 400005. ]
3. BYRAMJEE N. JEEJEEBHOY of Mumbai, ]
Indian inhabitant, residing at Grant ]
Paradi Bungalow No.2, August Kranti ]
Marg, Mumbai - 400026. ]
4. USHA MADHU DEVELOPMENT CO-OP.HSG. ]
SOCIETY LTD., a society registered ]
under Bombay Cooperative Societies Act ]
having their office at CTS No.1 near ]
Green Park, of Link Road, Village ]
Pahadi, (Goregaon), Mumbai - 400062. ]
2
5. VAKHARIA ESTATES & INVESTMENTS PVT.LTD. ]
a Company registered under Companies ]
Act, 1956,having its registered office ]
at 83, Joly Maker Chamber II, Back Bay ]
Reclamation, Nari man Point, Mumbai-21. ]
6. MEHROO JEEJEEBHOY INVESTMENTS PVT.LTD. ]
a Company registered under Companies ]
Act, 1956, having its office at 83, ]
Jolly Maker Chambers II, Nariman Point ]
Mumbai - 400021. ]
7. BEELINE IMPEX PVT. LTD., a Company ]
registered under Companies Act, 1956, ]
having its registered office at 83, ]
Jolly Maker Chambers II, Back Bay
ig ]
Reclamation, Nari man Point, Mumbai-21. ]
8. BEEJAY BUILDERS PVT. LTD., a Company ]
registered under Companies Act, having ]
its office at 83, Jolly Maker Chambers ]
II, Nariman Point, Mumbai - 400021. ]
9. USHA HOLDINGS PVT. LTD., a Company ]
registered under Companies Act, 1956, ]
having its office at 83, Jolly Maker ]
Chambers II, Nari man Point, Mumbai-21. ]
10.MAJAS LAND DEVELOPMENT PVT. LTD., ]
a Company registered under Companies ]
Act, 1956, having its office at 83, ]
Jolly Maker Chambers II, Nariman Point ]
Mumbai - 400 021. ]
11.PEARL COSMETICS & CHEMICALS PVT.LTD., ]
a company incorporated under Companies ]
Act, 1956,having its registered office ]
at 83, Jolly Maker Chamber II, Back ]..Respondents
Bay Reclamation, Nari man Point, ](Orig.Defdts.
Mumbai - 400 021. ] No.1 to 11)
3
ALONGWITH
NOTICE OF MOTION NO. 1421 OF 2009
Mr. Rohit Kapadia, senior counsel with Mr. Nitin Thakkar, senior counsel
and Mr. Gaurav Joshi i/b Ms.Tanvi Gandhi for the appellants.
Mr. Aspi Chinoi/Mr.V.A. Thorat, senior counsel withMr. Vivek Kantawala for
the respondent No.4.
Mr. Milind Sathe, senior counsel wi th Mr. Akram Bastivi i/b M/s. Hiralal
Thakkar & Co. for respondents No.1, 2, 3, 5, 6, 8, 9 and 10.
Mr. Tushar Goradia with Mr. Kishore Jain for the respondents No.7 and
11.
ig CORAM: S.B. MHASE
A.A. SAYED, JJ.
DATED: 22ND APRIL, 2009 ORAL JUDGMENT. : [Per S.B. Mhase, J.]
1. This Appeal is directed against the judg men t and order passed by the learned single Judge of this court on 24th Dece mber, 2008 in Chamber Sum mons No.587 of 2007 in Suit No.3376 of 2005. By the said judg ment and order the learned single Judge has rejected the Chamber Sum mons proposing to amend the Plaint.
2. For the sake of convenience, the appellant is referred to as plaintiff 4 and the respondents are referred to as defendants No.1, 2, 3, 4 and so on respectively.
3. The plaintiff filed Suit No.3376 of 2005 on the Original Side of this Court praying for several reliefs as claimed in paragraph 67 of the Plaint.
The suit is based on Memorandu m of Understanding dated 22nd Dece mber, 2001, executed between the plaintiff and the defendant No.1 and the plaintiff has, inter alia, prayed for specific perfor mance of the same. It has also been prayed in the suit that the Consent Decree ig passed in Suit No.4925 of 2000 is null and void and has no effect or consequence and, in any event, it is not binding upon the plaintiff and/or the 177 companies controlled by the plaintiff and/or the defendant No.4 of which the said 177 companies are the m e m bers. At this juncture, it is not necessary to go into the factual aver ments in the Plaint. Suffice it to state tha t the defendant No.4 Usha Madhu Cooperative Housing Society is a registered society under the Bombay Cooperative Societies Act and, therefore, a Cooperative Society under the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as "MCS Act"). Section 164 of the said MCS Act reads thus:
" 164. Notice necessary in suits:- No suit
shall be instituted against a society, or any
of its officers, in respect of any act
touching the business of the society, until the
expiration of t wo m onths next after
notice in writing has been delivered to the
5
Registrar or left at his office, stating the
cause of action, the na me, description and
place of residence of the plaintiff and the
relief which he claims, and the plaint shall
contain a state ment that such notice has been
so delivered or left."
4. With regard to this provision, the plaintiff has averred in paragraph 62 of the Plaint as follows:
"The Plaintiff sub mits that notice under Section 164 of
Maharashtra Co-operative Societies Act, 1960 is not
necessary as far as the Defendant No.4 is concerned."
Thus, at the ti me of filing of the suit, there was no notice issued and served as provided under section 164 and it is the case of the plaintiff that such notice is not necessary so far as defendant No.4 is concerned. Thus, it is a fact on record that the suit as against defendant No.4 was filed wi thout issuing notice under section 164 of the mcs act. Whether such a notice to the defendant No.4 is necessary or not is a ma t ter to be considered in the suit when the suit reaches the stage of final hearing.
5. After filing of the suit, the plaintiff filed Notice of Motion No.3950 of 2005 and the learned single Judge allowed the said Notice of Motion. It is ad mi t ted before this court by Mr. Aspi Chinoi, the learned senior counsel appearing for the respondent No.4 that the objection of non compliance of section 164 of the mcs act, though raised while opposing the said Notice of 6 Motion, the same was given up then for the ti me being for hearing of the said Notice of Motion. He sub mit ted that the said objection of non compliance of section 164 of the mcs act was given up for the ti me being for hearing of said Notice of Motion because, according to hi m, had it been pressed by the defendants, the ma t ter would have come under section 9-A of the Code of Civil Procedure (Maharashtra Amend ment) and it would then have been necessary to record evidence for disposal of the said objection.
The procedure under Section 9-A requires that the issue in respect of
jurisdiction and/or m aintainability
ig of the suit at the ti me of granting
and/or hearing interlocutory applications is required to be heard finally by recording evidence. Therefore, the learned senior counsel sub mi t ted that had the said issue been pressed at that ti me, the hearing of the Notice of Motion would have prolonged and, therefore, the said objection was not pressed at that point of ti me. According to him, this was done as the defendants were in a hurry to get the said Motion disposed of as there was an ad-interim order running against the defendants. However, the learned senior counsel for the plaintiffs sub mit ted that the objection was waived and given up by the defendants. We need not enter into this controversy at this stage because we find that it is not necessary for us to adjudicate on this point at this stage in this appeal. However, since the sub missions have been m ade in this regard, we have recorded it.
7
6. Notice of Motion No.3950 of 2005 was heard by the learned single Judge under the above referred circu mstances and the learned single Judge granted relief as prayed for in the said Notice of Motion in favour of the plaintiff. However, the defendants preferred Appeal No.496 of 2007 as against the said order passed in Notice of Motion No.3950 of 2005. The said Appeal was disposed of by the Division Bench (R.M.S.
Khandeparkar & P.B. Majmudar, JJ.) of this court on 11th June, 2008. The Division Bench allowed the said Appeal and set aside the i mpugned order and dismissed the Notice of Motion No.3950 of 2005. The ad-interi m ig relief which was running against the defendants was not continued by the Division Bench and the prayer m ade to tha t effect was also rejected.
However, the learned counsel for the defendants No.1, 4, 7 and 11 had made a state men t before the court that the defendants would not create any third party rights in the property in question for a period of four weeks fro m the date of the said order. The plaintiff, being aggrieved by the said judg men t and order passed in Appeal No.496 of 2007 dated 11 th June, 2008, preferred Special Leave Appeal (Civil) No.15654 of 2008 before the Apex Court. The undertaking given by the defendants No.1, 4, 7 and 11 was continued by the Apex Court, initially when the notice was issued in the said SLP and it has been continued when the SLP was disposed of by the Apex Court by order dated 5th February, 2009 which was subsequently modified by the Apex Court. Suffice it to state at this stage that the 8 undertaking given by the defendant No.4 that the defendant No.4 will not create any third party interest is continuing as against defendant No.4 even today. The Apex Court m erely granted injunction in invitu m. The Apex Court has fur ther granted liberty to the defendant No.4 to move the Apex Court for modification of the said undertaking in case the Appeal preferred against the Chamber Sum mons No.587 of 2007 viz. the present Appeal No.78 of 2009 is disposed of in favour of the defendant No.4. While disposing of the above SLP, the Apex Court has directed this court to dispose of the Suit No.3376 ig of 2005 expeditiously without being influenced by the orders of the Division Bench and Single Judge in the Notice of Motion referred to above. The Apex Court has also directed, having taken note of the fact that the Appeal as against Chamber Sum mons No.587 of 2007 viz. The t Appeal is pending before this Court, that the Appeal should be disposed of as expeditiously as possible, preferably wi thin a period of one mon th wi th liberty as stated above, for modification of the undertaking if the present appeal is decided in favour of the defendant No.4. Under these circu mstances, we have heard the present Appeal filed by the plaintiff.
7. We have noted above the provisions of section 164 of the mcs act and the pleading of the plaintiff in paragraph 62. However, it appears that in view of the objection of the defendant, though waived at the ti me of 9 hearing of the Notice of Motion as stated above, that Notice under section 164 of the mcs act is necessary to be served on defendant No.4 and in the absence of service of such a notice, the suit may not be main tainable; the plaintiff appears to have decided to co mply with the said provisions and, therefore, has given a notice under section 164 of the mcs act on 8 th February, 2007 to the Registrar of Cooperative Societies and the said notice was served on 9 th February, 2007. After the expiry of t wo months, on 16 th April, 2007, the plaintiff has filed Chamber Sum mons No.587 of 2007. In the Chamber Sum mons, the plaintiff m ade t wo prayers.
It appears that at that ti me, the Notice of Motion No.3950 of 2005 was pending and, therefore, prayer (a) was m ade, which reads thus:
" (a) Without prejudice to the pending Notice
of Motion No.3950 of 2005 leave be granted to
the Plaintiff to carry out a mend men t as per
the schedule to the Chamber Sum mons."
The Schedule provided thus;
1. Add as paragraph 62 of the Plaint
(a) Without prejudice to the sub missions
contained in paragraph 62 above the Plaintiff
submi ts that Plaintiff has by its Advocate's
notice dated 8 th February, 2007 has given
notice to the Registrar of the Co-op.
Societies Act, State of Maharashtra. The
said notice was served on the Registrar of
Co-operative Societies on 9 th April, 2007.
Hereto annexed and m arked Exhibit "FFF" is a
10
copy of the said notice along with the
acknowledge ment.
Thus, the plaintiff desires to a mend the Plaint by addition of this
paragraph and that was prayer (a) of the Chamber Sum mons. By way
of prayer (b), the plaintiff prayed as follows:
"(b) In the alternative to prayer (a) above
the following be granted.
(i) Permit
igthe Plaintiff to delete
Defendant No.4 from the suit and
allow the amend ment as per schedule
annexed hereto and add Defendant
No.4 again to the suit."
Thus, in the alternative prayer in addition to the a mend ment to
paragraph 62 as stated above, the plaintiff prayed for per mission to delete
defendant No.4 and to re-add defendant No.4 to the suit along wi th the
proposed amend ment of paragraph 62. This Chamber Sum mons was
heard by the learned single Judge and was rejected by an order dated
24 th June, 2008. The plaintiff, being aggrieved and dissatisfied by the
order of the earned single Judge dated 26th June, 2008, has filed this
Appeal before this court.
8 Since there were directions for expeditious hearing of the suit and 11 of this Appeal by the Apex Court, as stated earlier, and referred to in the above referred SLP, the ma t ter was listed and was heard on 8th April, 2009.
The argu ments concluded on 9th April, 2009. Mr. Rohit Kapadia, the learned senior counsel for the plaintiff submit ted before this court that the single Judge com mi t ted an error in considering the Chamber Sum mons filed by the plaintiff under an inherent power of the Civil Procedure Code.
The learned senior counsel for the plaintiff submit ted that the Chamber Sum mons could have been considered under Order XXIII Rule 1(3) of the Code of Civil Procedure. He submit ted that ig the amend men t and the prayers in the Chamber Sum mons were being proposed by the plaintiff as alternate pleadings. He sub mit ted that he still maintains that the notice under section 164 of the mcs act is not necessary to be given to defendant No.4 in the facts and circumstances of the case and that he will satisfy the court on this issue at the ti me of final hearing of the suit. But, by way of abundant precaution the plaintiff has issued such a notice and complied with the require men t section 164 and, therefore, in further compliance of section 164 the Chamber Sum mons has been m oved. He fur ther submi t ted that by prayer (b) the plaintiff desires to wi thdraw the suit as against the defendant No.4 wi th a liberty to file a fresh suit since the non service of the notice under section 164 was a for mal defect in the suit and since by such deletion and addition the plaintiff desired to re move the said formal defect in the suit, and accordingly, the prayer for deletion 12 and addition of defendant No.4 has been sought for. He fur ther sub mi t ted that simultaneously the plaintiff have prayed for inclusion of defendant No.4 along with the added portion of paragraph 62 and by this process he desired to comply wi th section 164 and also the require ment of filing of fresh suit after withdrawal of first suit by taking per mission of the court.
9. The learned senior counsel, in support of his contentions, has relied upon AIR ( 3 2 ) 1 9 4 5 Bom . 7 4 in the ma t ter of Champaklal Purshotta mdas and anr. Vs.Bai Narbadabai & ors.; AIR 1 9 6 3 SC 4 2 4 in the m a t ter of Amar Nath Dogra Vs. Union of India wherein the Apex Court has dealt with the provisions of section 80 of the Code of Civil Procedure which are analogous to that of section 164 of the mcs act. Reliance was also placed on AIR 1 9 8 4 SC 1 0 0 4 in the m a t ter of Ghanshya m Dass Vs.Dominion of India and ors. which is again a case referring to section 80 of the Code of Civil Procedure. The learned senior counsel ulti mately prayed for allowing the Chamber Sum mons.
10. Mr. Aspi Chinoi, the learned senior counsel appearing on behalf of the respondents No.4 sub mi t ted that the provisions of section 164 of the mcs act are mandatory provisions and the suit as against defendant No.4 being a Cooperative Society, cannot be filed unless notice under section 13 164 is served. He also m ade a reference to his state men ts which he made before the learned single Judge at the ti me of hearing of the Notice of Motion No.3950 of 2005 which has been quoted by us above. He fur ther sub mi t ted that the practice of filing a suit wi thout issuance of statu tory notice as provided under the statute and to obtain interi m relief and hereafter to issue notice as provided in the statute and pray for wi thdrawal of the suit after ma turity of such a notice and thereafter to file a fresh suit is a practice of circu m ven tion of the statutory provisions and the same has not been approved by the Apex ig Court. He very heavily relied upon the observations m ade by the Apex Court in AIR 1 9 8 4 SC 1 0 0 4 in the m a t ter of Ghanshya m Dass & ors. Vs. Dominion of India and ors. (supra) relied upon by the plaintiff specially paragraph 23 which reads thus:
" 23. Before parting with the case we consider it necessary to refer to one m ore aspect. It has frequently come to our notice that the strict construction placed by the Privy Council in Bhagchand's case (AIR 1927, PC 176) supra, which was repeatedly reiterated in subsequent cases, has led to a peculiar practice in some courts.
Where urgent relief is necessary, the practice adopted is to file a suit without notice under Section 80 and obtain interi m relief and thereafter to serve a notice, withdraw the suit and institu te a second suit after expiry of the period of the notice. We have to express our strong conde mnation of this highly objectionable practice. We expect that the High Courts will take necessary steps to put a stop to such practice."
14
Thus, he stated that when the Supreme Court has conde mned such practice being a highly objectionable practice, it will not be proper to allow the Chamber Sum mons and he sub mit ted that the Chamber Sum mons has been rightly rejected by the learned single Judge after observing that the said Chamber Sum mons has been filed to circu mven t the provisions of law and defect in the Plaint.
11. After hearing of the ma t ter as indicated above, the m a t ter was reserved for judg ment and listed for orders on 13 th April, 2009. On that day when the ma t ter appeared before this Court this Court found that in the Chamber Sum mons prayer (b) has been made to delete defendant No.4 and thereafter to add defendant No.4 alongwith the proposed amend ment of paragraph 62.This court pointed out to the learned senior counsel in open court that while seeking deletion of defendant No.4 there is no per mission sought to wi thdraw the suit as against defendant No.4 wi th a liberty to file fresh suit. Therefore, under these circu mstances, how and in what manner the plaintiffs' case can be considered under Order XXIII Rule 1(3) even though he has m ade the sub mission to that effect. As this aspect was not discussed at that ti me of hearing we also suggested him to consider as to whether it will be appropriate for the plaintiff to amend the Chamber Sum mons and/or to withdraw the Chamber Sum mons wi th a liberty to file fresh Chamber Sum mons. On this aspect both the sides 15 were unable to m ake im mediate sub missions and m ore specifically the learned counsel for the plaintiff, who submit ted that ti me may be granted to consider this aspect and, therefore, with the consensus of all the parties, the m a t ter was re-fixed for hearing on this aspect on 17th April, 2009. On the said date, the learned senior counsel Mr. Rohit Kapadia sub mi t ted that even though there is no specific prayer m ade in the language of Order XXIII Rule 1(3), yet the court can m ould a relief in the facts and circu mstances of the case and the prayer to delete defendant No.4 and prayer to include defendant No.4 wi th addition of paragraph 62 is, in substance, a prayer under Order XXIII Rule 1(3). To but tress this sub mission he relied upon AIR 1 9 9 8 Gujar a t 1 9 3 in the m a t ter of State of Gujarat & ors etc. Vs. S.C. Agrawal & ors. He also sub mit ted tha t by way of abundant precaution he is moving a Notice of Motion to amend the prayer clause of the Chamber Sum mons No.587 of 2007 being Notice of Motion No.1421 of 2009. The plaintiff has proposed an amend ment to include prayer (bb) to the Chamber Sum mons No.587 of 2007. The said prayer clause (bb) is as follows :
bb) in any event the Plaintiff be granted to
wi thdraw the suit against Defendant No.4 by
deleting na me of the Defendant No.4 fro m the
record of the Plaint and be granted liberty to file a
subsequent suit against Defendant No.4 on the
same cause of action by joining Defendant No.4
back in the suit and be per mit ted to amend the
plaint by amending the same as per the
16
Schedule annexed to the Chamber Sum mons."
12. Since this Notice of Motion to amend the Chamber Sum mons No.587 of 2007 was m oved across the Bar, the learned senior counsel Mr. V.A. Thorat who appeared for the first ti me in the ma t ter sub mit ted that he desired to file a reply to the Notice of Motion and, therefore, the m a t ter was adjourned once again to 20 t h April, 2009. The defendants have filed their reply and the plaintiff has also filed their rejoinder. Under these circu mstances, this Notice of Motion is nu mbered as Notice of Motion No.1421 of 2009 and it is under these circu mstances, this Notice of Motion is before this court. We heard the Notice of Motion. The learned senior counsel Mr. Rohit Kapadia, relied upon AIR 1 9 9 8 Guja r a t 1 9 3 in the ma t ter of State of Gujarat & others etc. Vs. S.C. Agrawal and others. He has also relied upon AIR ( 3 9 ) 1 9 5 2 SC 4 7 in the m a t ter of Kedar Lal Seal & anr. Vs. Hira Lal Seal and also on AIR 1 9 6 2 SC 6 3 3 in the ma t ter of Jankira ma Iyer and ors. Vs. P.M. Nilakanta Iyer and ors. Mr. Rohit Kapadia, the learned senior counsel for the plaintiff relied upon sections 151 and 153 of the Code of Civil Procedure as a source of power of this court for grant of a mend men t to the Chamber Sum mons.
13. Mr. V.A. Thorat, the learned senior counsel opposed the said Notice of Motion taking an exception to the Motion on the ground that at the appellate stage the Chamber Sum mons which is filed before the single 17 Judge cannot be amended and there is no procedure to tha t effect. The learned counsel submit ted that powers under section 151 cannot be invoked, in view of the fact that the procedure has been provided for and the power under section 151 is to be used sparingly by the court for the interest of justice. In support of his contention, he relied upon AIR 1 9 6 4 SC 9 9 3 in the m a t ter of Arjun Singh Vs. Mohindra Kumar and others, and specifically paragraph 19.
14. After the argu men ts of igthe parties were concluded we asked the counsel in the m a t ter as to whether they desire to have a separate judg men t in Appeal No.78 of 2009 and Notice of Motion NO.1421 of 2009 and/or will it be per missible for this court to dispose of the Appeal and the Notice of Motion together. All the counsel fairly submi t ted before this court that the Appeal and the Notice of Motion can be disposed of by a com mon and single judg men t and, therefore, we are delivering this com mon judg men t in Appeal No.78 of 2009 and in Notice of Motion No.1421 of 2009 after recording the factual aspects which transpired in court.
15. We will first deal with the Notice of Motion No.1421 of 2009 by which the plaintiff is seeking amend ment to the Chamber Sum mons No.587 of 2007. By this Notice of Motion, the plaintiff desired to include prayer (bb) in the Chamber Sum mons, whereby the plaintiff is trying 18 to make a suitable prayer to bring the Chamber Sum mons in consonance wi th the provisions of Order XXIII Rule 1(3). Though it is sub mit ted at bar and more specifically by the respondents that the provisions of section 164 are m andatory in nature, we have already made an observation that, that aspect can be considered only at the ti me of final hearing. At this stage the case of the plaintiff is that as the defendant has raised an objection of non compliance of provisions of section 164, they found it appropriate to comply with the said provisions and, therefore, the plaintiff has issued a notice on 8 th February, 2007 to the Registrar of Cooperative Societies. The plaintiff further states that the said notice was served on the Registrar of Cooperative Societies on 9 th February, 2007 and after the period of t wo mon ths, as provided in Section 164 was over, the plaintiff moved the Chamber Sum mons. As observed by us, in the Chamber Sum mons the alternative prayer which has been m ade by the plaintiff is that the plaintiff may be per mi t ted to delete the defendant No.4 and that the defendant No.4 be added as defendant No.4 along with the proposed amend ment in paragraph 62 of the Plaint. Thus, the Notice of Motion, when it was filed, the atte mp t on the part of the plaintiff is to seek deletion of defendant No.4 and simultaneously to add defendant No.4 alongwith the proposed amend men t to paragraph 62. Taking the Chamber Sum mons as it is, therefore, it is absolutely clear that the plaintiff was not desirous of giving up the cause of action or the suit as against 19 defendant No.4, but the plaintiff desired to keep the defendant No.4 as party-defendant with an amend ment in paragraph 62. In paragraph 62, as we have noted earlier, the plaintiff states that the notice has been served on a particular date and compliance of section 164 has been made by the plaintiff. Thus, since the prayer is composite, the effect of the prayer, as it was in the original Chamber Sum mons, was to the effect that the deletion wi th the per mission and addition wi th the per mission was simultaneous and though that prayer may not be on a strict construction of the language in the phraseology of ig Order XXIII Rule 1(3) of the CPC, yet in substance the plaintiff was invoking the powers under Order XXIII Rule 1(3) of the CPC. It is a well settled rule tha t the pleading and the prayers of the parties cannot be interpreted like a statute and thus read, we find that the initial Chamber Sum mons can be said to be seeking a relief under Order XXIII Rule 1(3) of the CPC. However, as we have expressed a doubt which is noted in the earlier part of the judg men t as a result of which the learned counsel on both sides have requested to adjourn the m a t ter, the learned counsel for the plaintiff by way of abundant precaution has filed a Notice of Motion proposing to include a prayer in the original Chamber Sum mons in the language of Order XXIII Rule 1(3). Since we have noted that the earlier prayer in substance was under Order XXIII Rule 1 (3), the proposed prayer is m aking the prayer in the Chamber Sum mons more clear, we do not find that by the proposed prayer in the Notice of 20 Motion, the plaintiff is trying to make out any new case and/or a new prayer which was earlier not sought before the learned single Judge. We are in agree ment with the learned senior counsel Mr. Rohit Kapadia that it would have been possible for this court to mould the relief as has been observed in AIR 1998 Gujarat 193 (supra). Mr. Thorat, the learned senior counsel for the respondent, though tried to oppose the Notice of Motion stating that the case relied upon by the learned counsel for the plaintiff is in respect of the Writ Petitions, he ulti ma tely conceded to the proposition that in appropriate cases, the court had the power to m ould the relief.
ig Thus viewed, it would have been possible for this court to mould the relief in the original Chamber Sum mons No.587 of 2007 taking into consideration the sub missions of the parties.
16. The other objection which has been raised by Mr. Thorat the learned senior counsel is in respect of the source and power and the manner in which the amend ment has to be carried out by a Notice of Motion in the Chamber Sum mons. The learned counsel for the plaintiff sub mi t ted that since the Division Bench is sitting as an appellate court, there cannot be any Chamber Sum mons to amend the Chamber Sum mons and, therefore, the Notice of Motion has been filed to amend the Chamber Sum mons. By way of source of power the counsel for the plaintiff relied upon section 151 and 153 of the CPC and sub mi t ted that in 21 the absence of any provisions in the CPC and/or in the High Court Original Side Rules, this court can exercise powers under section 151 and 153 of the cpc and allow this Notice of Motion to amend the Chamber Sum mons. We have already noted that Mr. Thorat opposed this proposition on the ground that section 153 of the cpc is not attracted in the facts and circu mstances of the case and that section 151 cannot be invoked because, according to Mr. Thorat, there is a procedure for the same provided in the CPC and the plaintiff may file a fresh Chamber Sum mons for this purpose after wi thdrawing the present Chamber Sum mons.
ig We inquired fro m Mr. Thorat as to what was the procedure to amend the Chamber Sum mons, either before the Single Judge and/or before this court. Inspite of his sub mission that procedure has been provided for, it was not possible for the learned senior counsel to point out such procedure for the said purpose.
The ulti ma te result is that the procedure as provided in the CPC and/or in the Original Side Rules does not provide for amend men t of the Chamber Sum mons. However, tha t by itself will not restrict the powers of this court.
17. Firstly, what we find is that Order VI Rule 17 of the CPC which applies in respect of amend ments to the pleadings is not applicable to the facts and circu mstances of the present case because Order VI defines pleadings as a "Plaint" or "Written State ment ". Thereby, Order VI Rule 17 conte mplates amend ment of a pleading viz. the pleadings in the Plaint and Writ ten 22 State men t. Order VI Rule 17 is, therefore, not applicable to the amend ments of the Notice of Motion or Chamber Sum mons or any interlocutory applications which are desired to be a mended by the parties. If, for any reason, the amend ment in such applications are required to be carried out, it can be only carried out under section 151 of the cpc viz. the inherent power to be exercised by the court for the sake of interest of justice.
Thus viewed, what we find is that the amend ment of the prayer clause of the Chamber Sum mons is only an at te mp t to remove a technical defect and as we have already stated tha t the prayer under Order XXIII Rule 1(3) was covered by prayer (b) and/or by relief moulding power, still by way of abundant precaution the plaintiff has m oved the Notice of Motion to bring his Chamber Sum mons more specifically and clearly under Order XXIII Rule 1(3) and since it is not a new atte mp t and it is only an atte mpt to clarify the position of the plaintiff, we find that the proposed amend ment m oved by the Notice of Motion is only a for mal one, necessary for the decision of the main Chamber Sum mons No.587 of 2007. We find that no prejudice is likely to be caused to the defendants. Therefore, in our opinion this court has power under section 151 of the cpc to allow such Notice of Motion.
18. We also record that we can exercise the powers under section 151 since the proceedings of the Chamber Sum mons are before us and the Appeal is a continuation of the proceedings to the extent of the Chamber 23 Sum mons which is pending before us for disposal and, therefore, we can entertain the Notice of Motion to a mend the Chamber Sum mons.
19. So far as section 153 of the cpc is concerned, it speaks about the defect in any proceeding. However, a defect in the Chamber Sum mons cannot be said to be a defect in the proceeding. `Proceeding' is a larger connotation and, therefore, in the facts and circu mstances of the case, we are inclined to accept the submission of the learned senior counsel for the plaintiff that powers under section 153 can be invoked for the purpose of allowing the Notice of Motion. In the result what we find is that the sub missions made by the learned senior counsel for the plaintiff are of m erit and the cases relied upon by hi m are properly submi t ted before this court. We, therefore, allow the Notice of Motion No.1421 of 2009 in the interest of justice for the reasons stated above and direct the plaintiff to forthwith carry out the amend ment in the Chamber Sum mons No.587 of 2007.
20. Having allowed the Notice of Motion as stated above, we have now to consider the validity and legality of the order passed by the learned single Judge in Chamber Sum mons No.587 of 2007. Before we deal with the rival contentions on both sides, we would like to record tha t the learned single Judge has observed that the obvious purpose for seeking a mend men t 24 which relates to deletion of defendant No.4 in the first instance and then addition thereafter is ai med to circu m vent provisions of the MCS Act which relates to a notice prior to the institu tion of a suit. After making these observations the learned single Judge has considered the Chamber Sum mons. What is interesting to note is that the point of allowing of Chamber Sum mons has been considered under the inherent powers viz.
under section 151 of the cpc. What we find is that the court can take a resort to section 151 if there are no provisions in the CPC to consider the Chamber Sum mons under ig the relevant provisions. The court has not considered Order I Rule 10 of the CPC and also Order XXIII Rule 1(3) before resorting to section 151. It was obligatory for the learned single Judge to record a finding as to why the provisions of Order I Rule 10 and/or Order XXIII Rule 1(3) are not applicable in the facts and circu mstances of the case and that for the said reason he was resorting to consider the case under section 151. Without doing this exercise, since sub missions were made under section 151 of the cpc, the learned single Judge has directly considered the case under section 151 and having found tha t it was an atte mp t to circu m vent the provisions of law, has rejected the Chamber Sum mons. What we find is that by this m e thod, the learned single Judge has com mi t ted a basic error in application of the provisions of the Code of Civil Procedure.
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21. It needs to be m en tioned at this stage that after the disposal of the Chamber Sum mons as stated above when the appeal was filed i m mediately the plaintiff raised ground No.(f) based upon Order XXIII Rule 1(3) and stated that the court should have considered the application under the said provisions. Even in ground (g), the plaintiff has prayed that the court should have considered the Chamber Sum mons wi th an analogous provision of Order XXIII Rule 1(3). Therefore, even though it has not been specifically stated in the Chamber Sum mons that the plaintiff is invoking power of the court under Order XXIII Rule 1(3), it was abundantly clear that the plaintiff was desirous of invoking the powers under Order XXIII Rule 1(3) of the CPC. In the absence of such invocation, grounds (f) and (g) would not have appeared in the Appeal Memo which was i m mediately filed after the ma t ter was disposed of by the learned single Judge.
22. Though we have m ade a reference to Order I Rule 10 of the CPC while referring to prayer (b) which is originally quoted in the Chamber Sum mons, ye t we are also of the opinion that Order I Rule 10 is not licable to the said prayer. Order I Rule 10 conte mplates that if there is any party to the suit, either plaintiff and/or defendant, wrongly joined, the court has the power to delete the said party. The said provision also gives a power to the court to add as plaintiff or defendant, any party which is 26 necessary to the suit, but has not been added as a party to the suit.
However, if we consider prayer (b), by the said prayer the plaintiff seeks to delete defendant No.4 and simultaneously desires to add defendant No.4. Therefore, in one breath it cannot be said that defendant No.4 was not a party necesary and wrongly added as a party to the suit and in the next breath it cannot be said tha t the defendant No.4 was a necessary party and, therefore, requires to be added to the Plaint. Therefore, taking the aforesaid facts and circu mstances and the prayer into consideration, it is clear that Order I Rule 10 is not applicable in order to grant the relief as quoted in prayer clause (b) of the Chamber Sum mons.
33. However, when we come to Order XXIII Rule 1(3), the m a t ter takes an entirely different colour. Order XXIII Rule 1(3) conte mplates thus:
"XXIII Rule 1
( 3) Where the Court is satisfied -
( a) that a suit m ust fail by reason
of for mal defect, or
( b) that there are sufficient
grounds for allowing the
plaintiff to insti tu te a fresh suit for
the subject m a t ter of a suit or part
of a clai m,
27
it may, on such ter ms as it thinks fit,
grant the plaintiff per mission to
withdraw fro m such suit or such part
of the claim with liberty to institu te a
fresh suit in respect of the subject-
ma t ter of such suit or such part of the
clai m."
Therefore, the plaintiff, in appropriate cases, viz. where according to the plaintiff there is a for mal defect in the suit or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit, the plaintiff may wi thdraw the suit and/or withdraw part of the claim with a liberty to file the same suit on the same cause of action. In the present ma t ter, ad mi t tedly the notice was not given when the suit was instituted. It is also an ad mi t ted fact tha t the defendants have raised an objection that the suit is not main tainable unless Notice under section 164 of the mcs act is served. In view of the objection, the plaintiff has served the notice on 9 th February, 2007 and after the m a turity of the notice, the plaintiff is seeking to delete the defendant No.4 and simultaneously to add the defendant No.4 alongwith the amend ment to paragraph 62. Under these circu mstances, it appears that the plaintiff is trying to delete defendant No.4 with the per mission of this court and to re-add defendant No.4 with certain proposed aver ments as stated in paragraph 62. The question is - whether this can be done in the manner as is being atte mp ted to be done by the plaintiff. In this respect, the learned senior counsel for the plaintiff has relied upon AIR 1 9 4 5 Bo m . 7 4 28 (supra). In the said m a t ter, initially the plaintiff had filed the suit against defendants No.1, 2 and 3 after taking a leave fro m the Advocate General under section 92 of the cpc. In the pending suit, at a subsequent stage Shapoorji Rusto mji Bhawnagri was added as defendant No.4, however, wi thout taking leave of the Advocate General as required under section 92 of the cpc. Since the added defendant raised a defence that the leave under section 92 was not taken from the Advocate General when he was added as a defendant, the plaintiff obtained leave to withdraw the suit against defendant No.4 with a liberty to ig file a fresh suit against hi m.
Thereafter, the plaintiff obtained leave of the Advocate General and filed an application to add the said party as defendant No.4. Under these circu mstances, it has been observed that Order XXIII Rule 1 does not conte mplate a fresh suit in the sense of a freshly filed suit against all the parties to the suit. It is quite sufficient if the suit is instituted as against a particular party after leave has been obtained under Order XXIII Rule
1. Accordingly, where a suit is filed against certain persons wi th the leave of the Advocate General under section 92 and subsequently a new defendant is added bu t the suit is withdrawn under Order XXIII Rule 1 as against hi m for want of leave under section 92 wi th per mission to file a fresh suit against hi m, the new defendant can be i mpleaded in the said suit after obtaining leave of the Advocate General under section 92 and the suit continued against all the defendants inasmuch as the re-
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i mpleading of the new defendant a mounts to the institution of a fresh suit against hi m wi thin the meaning of Order XXIII Rule 1. So, relying upon this judg men t, the learned senior counsel for the plaintiff sub mit ted that the present Chamber Sum mons is covered by the ratio of this judg ment and, therefore, the plaintiff is entitled to delete and add defendant No.4 in the said pending suit. Since the m a t ter in hand was in respect of the service of a notice prior to the institu tion of the suit as against certain statu tory or corporate authorities, reference has been m ade by counsel on both sides to sectionig 80 of the CPC. Therefore, apart fro m the above referred judg ment the learned senior counsel for the plaintiff has also relied upon AIR 1963 SC 424 (supra) to e mphasize that the object of section 80 of the cpc is m anifest to give the Govern ment or a public officer sufficient notice of the case which is proposed to be brought against it or hi m so that it or he m ay consider the position and decide itself or hi mself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Govern ment or the public officer to arrive at a decision it is necessary that it or he should be infor med of the ma t ter of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise relief asked for. AIR 1 9 8 4 SC 1 0 0 4 (supra) was also referred to point out that section 80 of the cpc is but a part of procedural code passed to provide the regulation and the m achinery by m eans of which the courts can do justice between the parties. It is, 30 therefore, m erely a part of the ad ministrative law and deals wi th the procedure alone and m ust be interpreted in a m anner so as to subserve and advance the cause of justice rather than defeat it. Our laws and procedures are based on the principle that as far as possible, no proceeding in a court of law should be allowed to be defeated on m ere technicalities.
Thus, the sub mission of the learned counsel for the plaintiff was that, that the procedural laws cannot be interpreted in such a way so as to defeat the main object of justice and, therefore, a substantial compliance of those provisions is a sufficient compliance, the object being to give infor mation to the said statu tory body or Govern men t or the public officer, infor mation about the cause of action and the nature of the suit which he is likely to face. Therefore, the learned senior counsel sub mi t ted that though on the date of the filing of the suit the notice under section 164 of the mcs act was not given, yet by way of abundant precaution in view of the objection of the defendants, the said notice was given and after the ma turity of the said notice, the plaintiff is trying to re move a for mal defect in the suit.
24. So far as the argu ment of Mr. Aspi Chinoi, the learned senior counsel is concerned, he has heavily relied upon the observations in paragraph 23 of the judg men t in AIR 1 9 8 4 SC 1 0 0 4 as has been reproduced above by us. He submit ted that when the practice of giving 31 notice subsequent to the filing of the suit and thereafter wi thdrawal of the suit has been conde mned by the Supreme Court, the said Chamber Sum mons may not be allowed. What we find is that the observations in paragraph 23 in relation to section 80 have been made by the Apex Court considering section 80 as it was prior to 1976 amend ment and apart fro m tha t, the said observations have been made when the said issue was not directly before the Apex Court. What we find is that paragraph 23 of the Apex Court judg ment is neither a ratio deci dendi nor orbiter dicta, bu t it is only a passing observation which the Apex Court has m ade. Therefore, we find that since it is only a passing observation, is it not binding upon us. We accept the sub mission made by Mr. Rohit Kapadia, the learned senior counsel appearing for the plaintiff to the said effect. At this stage we also make it clear that except for an objection based on this paragraph which supports the clai m of circu m vention of the provisions of law, no other argu ment has been advanced on behalf of the defendants by Mr. Aspi Chinoi, the learned senior counsel.
25. Mr. Milind Sathe, the learned senior counsel appearing for the respondents No.1, 2, 3, 5, 6, 8, 9 and 10 sub mit ted that the proceeding which has been instituted wi thout giving a notice under section 164 is nonest in the eyes of law and, therefore, for such proceeding, no 32 per mission to withdraw is required to file a fresh suit and, therefore, the Chamber Sum mons be rejected. We are not in agree men t with the learned senior counsel for the said defendants. The suit has already been instituted. The plaintiff is trying to wi thdraw the suit against one of the defendants and thereafter to re-include the said defendant in the suit. Even in the absence of the deleted defendant, the suit continues. Therefore, it cannot be said tha t the suit is nonest in the facts and circu mstances of the case or in the eyes of law. Therefore, the contention that the suit is nonest and therefore, Order XXIII CPC is not applicable is not acceptable to us.
26. What we find is that the procedure required to be followed should be such tha t interest of justice furthers and makes progress. It cannot be allowed to be used in such a m anner which will frustrate the interest of justice. In the present m a t ter, the defect which has been pointed out viz.
non compliance of section 164 of the mcs act is a for mal defect.
Therefore, the plaintiff is taking abundant precaution not to allow to frustrate his cause of action for such a technicality in law, though the plaintiffs comes wi th an assertion and still asserts that the notice under section 164 is not necessary. Therefore, relying upon the judg men t of this Court in AIR ( 3 2 ) 1 9 4 5 Bom . 7 4 (supra), we are inclined to allow the Chamber Sum mons. We do not agree with the learned single Judge that all 33 this has been done by the plaintiff purely with an intention to circu m vent the provisions of law. On the contrary, the plaintiff is trying to carry out all these amend men ts in order to overcome the objections raised by the defendants, which, at a point of ti me and for a limited purpose, were waived by the defendants also. Therefore, if the plaintiff is taking precaution to protect his suit by overcoming the objections which have been raised by the defendants m aintaining the initial stand taken by the plaintiff, we do not find that there is any intention to circu m vent the provisions of law and thus we do not approve the observations m ade by the learned single Judge to that effect.
27. In the result, the Appeal is allowed. The order passed by the learned single Judge in Chamber Sum mons No.587 of 2007 is hereby quashed and set aside. The Chamber Sum mons is allowed in ter ms of prayer clause (bb) as has been stated in the Notice of Motion No.1241 of 2009 before this court. Resultantly, we pass the following order.
(a) The plaintiff shall carry out the
amend ment in the Chamber Sum mons No.587
of 2007 in view of the order passed by us in the
Notice of Motion No.1421 of 2009.
(b) The plaintiff shall carry out the
amend ment in the suit in view of the fact that
the Chamber Sum mons No.587 of 2007 is
allowed by this court by allowing
the Appeal.
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(c) In the facts and circu mstances of the
case, no costs.
28. At this stage, Mr. Vivek Kantawala, the learned counsel for the
respondent No.4 requested for stay of this order for a period of six
weeks. The Supre me Court vide its order has already expedited the
hearing of the suit and there was a direction to dispose of this Appeal wi thin a period of one mon th from the disposal of the SLP (Civil) No.15654 of 2008 which was disposed of on 5th February, 2009. Since the Apex Court has desired that the ma t ter should proceed as early as possible, we are not inclined to grant stay. Apart fro m this, what we find is tha t by deletion and addition of defendant No.4 only for mal defect has been re moved and thereby no prejudice has been caused to the defendants.
Therefore, we are not inclined to grant any stay to the proceedings. We fur ther feel that the atte mp t to approach the superior court, under these circu mstances, is only an atte mp t to protract the litigation and, therefore, we are not in favour of granting stay. Stay, accordingly, refused.
[A .A. SAYED, J.] [S.B. M H ASE,
35
J.]
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