Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. : MHCC01-006416-2019. .1. CH/S No. 1146/2019 in
L.C. Suit No. 4567/2007.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS No. 1146 OF 2019.
IN
L.C. SUIT No. 4567 OF 2007.
Panorama Premises CHS. Ltd. …....................... …. PLAINTIFF.
V/s.
Moolsinh Karsandas (Since Deceased through
his L.Rs.) and the others. …..........………….….. …. DEFENDANTS.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 29th September, 2022.
APPEARANCES :
Mr. D.A.Thorat, Ld. Advocate for the Plaintiff.
Ms. Ria Menon, Ld. Advocate for Defendant No. 3.
Mrs. Smita Chavan, Ld. Advocate for Defendant No. 4.
Ms. Tanvi Dhira, Ld. Advocate for Defendant No. 5.
*****
01. The plaintiff has taken out this Chamber Summons (for the
brevity the Ch/s.), U/O. VI Rule 17 of the Civil Procedure Code,1908, to
carry out amendments in the plaint, as per schedule annexed herewith.
Perused the Ch/s., accompanying affidavit of Mr. Tushar Kale, the Joint
Secretary of the plaintiff and say of defendant No. 3. Whereas. the rests
of defendants did not contest the Ch/s.. Heard both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the proposed amendment is
necessary for deciding the real question
in controversy between the parties ?…. .....Yes.
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(ii). What Order ? .............…....................... …. As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT No.1 :
03. By filing this Ch/s., the plaintiff contended that originally,
Tulsi Bhavan Bungalow was standing on the leasehold land, which was
admeasuring 696.41 sq. mtrs.. Defendant Nos. 1 and 2 were the lessees
of the land, admeasuring 1500.96 sq. mtrs. and they assigned the rights
of development, in the said leasehold land, in favour of defendant No.3.
Defendant No. 3 intended to demolish the structure of Tulsi Bhavan and
to construct a multi-storied building by utilizing the entire FSI including
loading of TDR of about 30,000 sq. ft. equivalent to 2826.01 sq. mtrs. of
larger suit plot of land, instead of utilizing FSI of the leasehold land. On
account of this intended demolition, the plaintiff terminated the lease of
defendant Nos. 1 and 2, which was granted to them on 26.02.1979, by
notice dtd. 16.05.2005 and filed RAE Suit No. 576 of 2005 for eviction.
As he was not aware that the building plans were approved in the name
of defendant No.3, he filed Suit No.5346 of 2005, restraining defendant
No. 4 to approve the building plans of defendant No.3. However, at the
interim stage of this matter, defendant No. 4 informed that the building
plans were already approved and therefore, he withdraw the said suit.
He filed the interim application in RAE Suit No.576/2005, before Small
Causes Court, Mumbai, for injunction against defendant Nos.1 to 3 from
carrying out any construction on the suit land, which was dismissed on
30.08.2006. Against this Order, he preferred Appeal No. 298/2006 and
the same stood dismissed on 17.11.2006. He assailed the said Order by
filing WP No. 1031/2008 and in view of the Order dtd. 11.04.2008, the
Hon’ble High Court directed that any redevelopment by defendant No. 3
on the suit land shall be the subject to result in RAE Suit No. 576/2005.
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L.C. Suit No. 4567/2007.
Defendant No. 3 filed SLP against the said Order. However, the said SLP
came to be dismissed on 16.11.2010. Thereafter, defendant No.3 started
and completed construction of multi-storied building which is known as
‘La Magasine’, be demolishing Tulshi Bhuvan Bungalow. While doing so,
he utilized TDR FSI of the entire land, admeasuring 2826.01. sq. mtrs.
without his consent, and also obtained OC on 5.11.2011. Defendant No.
3, being the developer / promoter also sold offices and shops in the said
building to the members of defendant No. 5. The plaintiff appointed Mr.
Rajan Hate, Licensed Surveyor, for carrying-out site measurement of the
suit land and he submitted his report on 02.04.2018. Even as per report
of M/s. Spare & Associates Architects, defendant No.5 is possessing the
excess area of 220.85 sq. mtrs.. During pendency of the suit, defendant
Nos. 1 to 3 executed Deed of Assignment of Lease dtd. 24.08.2013, in
favour of defendant No. 5 and as now, defendant No. 5 is claiming to be
owner of the said La-Magasin building, it has been necessary to amend
the suit. In the circumstances, the plaintiff had to file this Ch/s. and also
asked for additional reliefs in the form of declaration and injunctions.
Defendant No.3 objected this Ch/s., it being frivolous and misconceived.
Further, the plaintiff did not come with clean hands and suppressed the
material facts. As this suit involves determination of contractual rights
between the parties as landlord and tenants, it falls within the purview
of Section 33 of the Maharashtra Rent Control Act. Hence, the Court has
no justification to try this suit.
04. Having considered the rival submissions, at the outset, it is
pertinent to note that by filing this suit the plaintiff prayed for the relief
of their declaration as owner of the properties and that defendant Nos.
1 and 2 had no rights to develop and construct the same, along-with the
other ancillary reliefs. The record reveals that although, the suit filed in
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L.C. Suit No. 4567/2007.
the year 2007, the trial is still to commence. Further, by filing this Ch/s.,
the plaintiff is agitating the aspects, which existed since long. Certainly,
the facts as regards filling the suit and other proceedings, Orders passed
therein, the alleged intent of defendant No. 3 to demolish Tulsi Bhavan,
construction of the said building, assignment of its rights to members of
defendant No.5, etc. could have been incorporated in the plaint sooner.
Further, the said Deed of Assignment of Lease was executed in the year
of 2013. However, the plaintiff could not justify this delayed filing of the
Ch/s.. But, the fact remains that the suit is at initial stage and trial is yet
to begin. In addition, the proposed amendments are formal and now, on
it's basis, the plaintiff would not be able to institute a separate suit. It is
necessary to decide the real question in controversy and it would assist
this Court to adjudicate upon the suit issues finally. That apart, it would
minimize chain of litigation between the parties. Simultaneously, as the
objections raised by defendant No.3 touches to its merits, the same can't
be considered at this stage. On this backdrop, I am of the view that this
Ch/s. deserves to be allowed. However, while doing so, it would be just
to impose adequate costs upon the plaintiff to have further delayed this
trail. Hence, I answered point No.1 in the affirmative and in the answer
to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 1146/2019 is made absolute
in terms of prayer Clause (a) and (b) only, subject to
payment of costs of Rs. 5,000/-(Rs. Five Thousand) in
favour of the D.L.S.A., Mumbai, positively till the next date.
(ii). On the payment of the costs, plaintiff is called upon to
carry out the proposed amendment in the plaint, within
two weeks from passing of this Order, and to file the
amended copy of the plaint simultaneously.
(iii). The parties are called upon to expedite the matter.
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CNR No. : MHCC01-006416-2019. .5. CH/S No. 1146/2019 in
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(iv) Chamber summons No. 1146/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 29.09.2022. City Civil Court, Mumbai.
Dictated on : 29.09.2022.
Transcribed on : 30.09.2022 & 01.10.2022.
Checked & Signed on : 03.10.2022.
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CNR No. : MHCC01-006416-2019. .6. CH/S No. 1146/2019 in
L.C. Suit No. 4567/2007.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.10.2022 at p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 29.09.2022.
Judgment/Order signed by P.O. on 03.10.2022.
Judgment/Order uploaded on 04.10.2022.
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