JAGDISH RAMDHAN SINGH Vs. KEKI RATTANSHA KALAPESI

JUDGEMENT

(1.) THIS chamber summons is taken out by the plaintiff praying that he be permitted to carry out amendment to the plaint pursuant to the consent order dated 11th March, 1982 passed by the Prothonotary and Senior Master, High Court, Bombay, in this suit, and that, this Court be pleased to condone the delay of 19 years in carrying out the said amendment.

(2.) THE prayers made in the chamber summons and the facts which led to these prayers are not only peculiar, but are shocking. Briefly stated, the plaintiff Jagdish Ramdhan Singh filed a suit against defendant No. 1 Keki Rattansha Kalapesi, since deceased in the year 1981 for specific performance of sale of the immoveable property described in para 1 of the plaint. Admittedly, original defendant No. 1 Keki Rattansha Kalapesi was the owner of a plot of land bearing Survey Nos. 37 and 42, admeasuring about 2,79,994 square yards equivalent to 2,34,102. 97 square meters or thereabout situated at village Charkop in Borivli, Taluka Bombay. The plaintiffs case is that there was agreement for sale dated 28th January, 1997 made between the plaintiff and the original defendant No. 1 to see this property to the plaintiff for a price of Rs. 9,00,000/- on the terms and conditions mentioned in the said agreement. Copy of the said agreement is annexed as Exhibit B to the plaint. Thereafter, as per the plaintiffs case, there was a renewal of the agreement on 29th May, 1980, and the original agreement dated 28th July, 1997 was renewed on the same terms and conditions. Plaintiff, at the request to defendant No. 1 paid to him a total sum of about Rs. 1,50,000/- and the balance sum of Rs. 7,50,000/- remained payable by the plaintiff to defendant No. 1. Thereafter, plaintiff learnt that the original defendant was unwell and was admitted in Parsi General Hospital. He also learnt from daughter of the original defendant No. 1, one Mrs. Perviz F. Dotivale that about a month earlier, defendant No. 1 had executed an agreement for sale in favour of defendant No. 2 namely one Resham Singh Pyars Singh with respect to the same piece of land. Plaintiff gave a notice to defendant no. 2s Advocate, stating that the agreement between plaintiff and defendant No. 1 was prior in point of time and that, defendant No. 2 was not entitled to purchase and defendant No. 1 was not entitled to sell the said land to anybody else, except the plaintiff. Thereafter, the present suit came to be filed by the plaintiff against both the defendants, praying for declaration that the agreement entered into between the plaintiff and defendant No. 2 was valid, subsisting and binding on defendant No. 1, further calling upon defendant No. 1 to specifically perform the said agreement. Though defendant No. 2 was made a party to this suit, no relief whatsoever was claimed against defendant No. 2.

(3.) THEREAFTER, it appears that defendant No. 1 Keki Rattansha Kalapesi who had entered into agreement for sale with the plaintiff, expired on 3rd December, 1981. The plaintiff therefore was required to bring the legal heirs and representatives on record in place of original defendant No. 1. On 11th March, 1982, consent order was passed to bring on record the legal heirs and representatives of defendant No. 1 within two weeks by the Prothonotary and Senior Master, Bombay. However, the plaintiff did not carry out this amendment at all, though period of more than 19 years have passed. Thereafter, on 7th December, 2001, the present chamber summons is taken out by the plaintiff praying that the delay of 19 years in carrying out the amendment be condoned and the amendment of the plaint be permitted.