Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 143/20 in S.C.Suit No.1025/13. 1 Order.
MHCC010009662020
Presented on : 27-01-2020
Registered on : 27-01-2020
Decided on : 14-06-2022
Duration : 2 years, 4 months, 18 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 143 OF 2020
IN
S. C. SUIT NO. 1025 OF 2013
(CNR NO. MHCC01-000966-2020)
Mrs. Deepali Dilip Kher )...Applicant/Plaintiff
Versus
1. Hemangi Madhukar Bhatkar )
2. Atlas Infra Tech Pvt. Ltd., )
3. Sita Niwas Cooperative Housing Society Ltd. )
4. Madhukar Bhatkar )
5. Jasmita Yogesh Tambe ) ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 14th JUNE, 2022.
Shri Dharam Sharma, Advocate for the plaintiff.
Shri Amrut Joshi a/w Adv. Kulkarni, Advocate for the defendants.
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 2 Order.
ORDER
1. The plaintiff has taken out the chamber summons for
amendment in the plaint as per order VI Rule17 of the C.P.C.
2. Perused chamber summons, affidavit in support and affidavit
in reply and suit proceedings. Heard Ld. Counsel Dharam Sharma for
the plaintiff and Ld. Counsel Shri Amrut Joshi for the defendant Nos.
1, 1B and 1C.
3. It is the contention of the plaintiff that she alongwith the
original defendant No.1 is coowner of the suit premises. She had
sought reliefs of declaration of ownership and allotment of permanent
alternate accommodation in lieu of the suit premises. She had filed
Notice of Motion No. 1267/2016 for interim and adinterim injunction
restraining defendant No.2 (developer) from handing over the
possession of permanent alternate accommodation in lieu of the suit
premises to defendant Nos. 1A to 1C or any of them.
4. This court had granted adinterim relief in terms of prayer
clause (a) and (b) as per order in the said Notice of Motion passed on
02.07.2018. The defendant No.1B preferred appeal against the said
order before the Hon'ble High Court, Bombay by filing A.O. No.
325/2019. The said appeal was admitted as per order dtd. 25.11.2019.
Order of this court in Notice of Motion came to be stayed as per order
dtd. 25.11.2019 in Civil Application No.769/2019 in A.O. No.
325/2019.
5. The plaintiff has further contended in affidavit in support that
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 3 Order.
the defendant no.1B in collusion and connivance with defendant No.2
(Developer) and defendant No.3(Society) managed to get the
possession of permanent alternate accommodation bearing Flat No.
2003 in the newly constructed building known as “ATLAS ROYAL” . In
the light of these developments, the plaintiff has prayed to allow to the
amendment in the plaint to bring subsequent developments on record
and also for inserting prayer clauses for addition of the plaintiff's name
in the agreement for permanent alternate accommodation dtd.
23.5.2016 made between the defendant No.2, defendant No.3 and
defendant no.1B. She also intended to insert alternative prayer for
execution of another similar agreement in order to insert her name in
the agreement. Similarly, the prayer for declaration regarding
agreement for permanent alternate accommodation dtd. 23.5.2016 is
unlawful and illegal and for its cancellation is sought to be inserted in
the plaint. She has also sought relief of appointment of the Receiver and
declaration to allow the plaintiff to use the said permanent alternate
accommodation alongwith defendant No. 1B.
6. Defendants No.1A to 1C have denied in their affidavit in reply
that defendant No.2 had no right to hand over possession of Flat
No.2003 to them. They claimed that they are entitled to occupy Flat
No.2003. After denying contentions of the plaintiff, they prayed for
dismissal of the Chamber Summons.
7. Ld. Counsel Shri Dharam Sharma for the plaintiff submitted
that proposed amendment is to bring subsequent developers on record.
As principle prayer of declaration of joint ownership survives, ancillary
prayers are maintainable. He further submitted that the plaintiff is not
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 4 Order.
protracting the trial. The plaintiff had not anticipated all these
developments. The subsequent events have to be pleaded in the plaint.
He further submitted that The Hon'ble High Court made observations
regarding the handing over of the possession of the said flat to
defendant No.1B in A.O. No. 325/2019 in order dtd. 11.01.2022. He
prayed to allow Chamber summons.
8. On the contrary, the Ld. Counsel Shri Amrut Joshi for
defendant No. 1A to 1C submitted that the plaintiff had filed suit for
declaration of co ownership of the suit premises, allotment of the flat
and permanent injunction. Now the plaintiff intends to insert prayer
regarding cancellation of the agreement dtd. 23.5.2016. According to
him, the said agreement is registered documents and it was well within
the knowledge of the plaintiff. He relied upon the observations in case
of Dilboo (Smt) (Dead) By Lrs. And Others v.s Dhanraji (Smt)
(Dead) And Others, (2000) 7 SCC 702, in the context of Article 134 of
the Limitation Act., 1908 and submitted that the date of registration of
the document becomes the date of deemed knowledge. Prayer for
cancellation of the agreement is barred by limitation. He relied upon
Para 9 in the case of Shri Saibal Mukarji V.s Shri Kumar Naryan
Bose @ Basu, 2018 SCC Online Cal 369 in which it is observed that,
the court shall not permit the party to alter or amend the plaint to
incorporate inconsistent or mutually destructive pleadings nor permit
any party to withdraw the admission already made therein.
9. He also relied upon the the case of Chittaranjan Jana V.s
Pankaj Nayek and Ors., C.O. No. 188/2009 decided on 5.10.2012
by the Calcutta High Court, in which it is held in Para16 that when
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 5 Order.
the plaintiff wanted to introduce a totally different new and inconsistent
pleadings, if the proposed amendment is allowed, it will substitute one
distinct cause of action for another and it will certainly cause change of
the character of the suit. He further relied upon Para Nos. 11, 17 and 42
in the case of Vaishnavi Sai Shri Mahalxmi Jagdamaba Shikshan
Sanstha V.s. Purva Vidarbha Mahila Parishad, 2021 SCC Online
Bom. 1194 and submitted that the plaintiff is going to make
inconsistent prayers changing the very nature of the suit. He further
submitted that the suit will change from declaratory suit to the suit for
mandatory injunction and specific performance of the contract. He also
read out Para 63 in the case of Revajeetu Builders and Developers v.s
Narayanswamy and Sons and Others,(2009) 10 SCC 84, in which the
Hon'ble Supreme Court has laid down the basic principles which are
considered while allowing or rejecting the application for amendment.
He prayed for rejection of Chamber Summons.
10. Considering the rival submissions and material on record, it is
clear that the plaintiff is claiming to be coowner of the suit premises
alongwith defendant No.1. On the basis of all these contentions, the
plaintiff is claiming to have rights in the permanent alternate
accommodation which was going to be made available by defendant
No.2(Developer) to defendant No.1. The plaintiff has stated that
defendant No.1B has been put in possession of the flat (permanent
alternate accommodation) by defendant No.2 during the pendancy of
the suit.
11. In short, developments, which have taken place during the
pendency of the suit, are required to be brought on record. The plaintiff
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 6 Order.
is entitled to seek reliefs which are corollary of this subsequent
development. If the proposed amendment is not allowed, the plaintiff
would be prevented from bringing on record subsequent developments
and from claiming necessary reliefs. As the plaintiff is claiming his
rights on the basis of his coownership over the suit premises, proposed
amendment is liable to be allowed in order to prevent frustration of the
object filing of the suit.
12. I have gone though all five citations relied upon by Ld.
Counsel Shri Amrut Joshi. Considering variance in the factual aspect of
the case in hand, there is no scope to apply ratio in these citations for
rejection of Chamber Summons. In the result, Chamber Summons is
liable to be allowed. Hence, I pass the following order :
ORDER
1. Chamber Summons No.143/2020 is made absolute
in terms of prayer clause (a).
2. The plaintiff is directed to carry out amendment in
the plaint within 15 days from the date of this
order.
3. The proceeding of Ch/s No. 143/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 14/06/2022. Mumbai.
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 7 Order.
1. Dictated on : 14/06/2022.
2. Transcribed on : 14/06/2022.
3. Signed on : 14/06/2022.
4. Delivered to Certified :
Copy Section on
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Ch/s No. 143/20 in S.C.Suit No.1025/13. 8 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15s/06/2022. 11.30 a.m. Miss K.M.Rana
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 14/06/2022.
Judgment/Order signed by P.O. on 14/06/2022.
Judgment/Order uploaded on 15/06/2022.
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