Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s no.1771/2019 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1771 OF 2019
CNR NO.MHCCO10100602019
IN
S.C. SUIT NO.2912 OF 2015
Terra CHS Limited and ors ..Plaintiffs
V/s
Simplex Realty Limited and ors ..Defendants
Ld. Advocate P.D.Gandhy for the plaintiffs
Ld. advocate Mr.N.B.Bhadang with adv. Aditya Thakkar i/b
Federal and Company for defendant no.1
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 24/10/2019
ORAL ORDER
1. This chamber summons is tendered by the plaintiffs
for amendment of the plaint.
2. Heard.
3. Ld. Counsel for the plaintiffs submitted that after
filing of the present suit and Notice of Motion
No.4499/2013, a statement was made by defendant
no.1 that in case they intends to start construction of
a residential premises they would give a notice to the
plaintiffs seven days in advance and defendant no.1
was not carrying out any construction activity on the
open land adjoining to 579.71 square meters on
which the old office structure stood, and which
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measures approximately 4000 sq. meters continued
to be open and vacant and the plaintiffs and other
societies continued to have access to this area.
Thereafter on 08/12/2018, one of the member of the
plaintiff's society noticed marking of the above open
freehold land adjoining the old office structure and
defendant no.1 started bringing construction material
thereon. The plaintiffs vide email 08/12/2018
immediately called upon the director of defendant
no.1 to explain the markings and any intention to
undertake any construction on the said portion of the
suit property and whether they had sanctioned plan
for that purpose. On or about 21/12/2018,
defendant no.1 once again attempted to change the
existing boundaries by erecting MS steel sheets in the
connecting passage between the Planet Godrej
compound and the disputed plot. Therefore, plaintiff
no.3 vide letter dated 21/12/2018 lodged a
complaint with Agripada police station. The plaintiff
further states that the work on erecting
boundary/fencing near the Tata Power station was
stopped by the defendant no.1 but the girders for the
fencing activity have still not removed. In February
2019, the plaintiff was constrained to file Chamber
summons No.325 of 2019 seeking direction against
defendant no.1 to make true and full disclosures and
to give inspection of sanctioned plan. In the
meantime, certain digging activity was carried out
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intermittently on the open portion of freehold land
beyond the area of 579.71 sq. meters. On
26/03/2019, it was noticed that defendant no.1 had
again commenced digging and earth clearing work
with heavy earth moving equipment. The plaintiffs
filed notice of motion no.2622 of 2019 before this
Court. This Court passed an order directing
defendant no.1 to disclose and supply copies of
building plans and permissions relating to the
construction activity carried on by it to the plaintiffs
within eight weeks. On or around 28/06/2019,
defendant no.1 restarted construction activity. The
plaintiffs moved for adinterim reliefs in Notice of
Motion no.2622 of 2019 and the same was rejected.
The plaintiff moved before the Hon'ble High Court
and vide order dated 05/09/2019, defendant no.1
made a statement that it would not carry out any
construction pending the hearing and final disposal
of notice of motion no.2622 of 2019. It has become
apparent from the disclosures that defendant no.1
once again intended to encroach upon and interfere
and dispossess the plaintiff by putting up
construction and intends to occupy entire open
portion of freehold land and also by blocking access
to the portion of the freehold land. Hence, the
plaintiff intends to amend the plaint and this
chamber summons was filed.
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4. The chamber summons is opposed by defendant no.1
by filing reply. It is the contention of defendant no.1
that the chamber summons is abuse of process of law
and seeks to overreach the orders of the Hon'ble High
Court. All purported facts that are sought to be
brought on record by the way of present notice of
motion are prior to the order of the Hon'ble High
Court dated 05/09/2019. The plaintiff never
informed the Hon'ble High Court of being desirous of
filing such a chamber summons and neither was any
such liberty sought nor granted. The present
chamber summons was filed on 01/10/2019 i.e. after
the affidavit in rejoinder dated 26/09/2019 was filed
by the plaintiff and the date for final hearing and
disposal of the notice of motion was fixed by consent
of parties. This chamber summons is filed thereafter,
is an abuse of process and an obvious dilatory tactic.
The amendments sought to be made in the plaint
seek to introduce mutually destructive pleas. The
proposed amendment seek to alter and plead a new
case than the case set up in the plaint. It is
submitted that an entirely new case is sought to be
pleaded for the first time by way of these
amendments. The new case and amendments are
barred by law of limitation. It is submitted that the
plaint as filed provides that it is filed for a limited
purpose and leave under Order 2 Rule 2 of the Code
of Civil Procedure, 1908 was sought to sue for reliefs
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that were omitted in the plaint. The said application
under Order 2 Rule 2 was rejected by order dated
11/11/2016. It is submitted that plaint was filed on
19/12/2013 and the written statement was filed by
defendant no.1 on 05/05/2017, however the present
chamber summons was filed on 01/10/2019. The
chamber summons is filed belatedly and no
explanation for the delay is sought. In the guise of
subsequent facts, the plaintiff has sought proposed
amendments to the plaint with a malafide intention
and to seek a back door entry to introduce prayers
otherwise not permitted by law and to agitate non
issues only to defeat and delay proceedings. Hence,
prayed for dismissal of the chamber summons.
5. I have considered the rival contentions of the parties.
The trial has not been commenced. The proviso to
order 6 Rule 17 of the Code of Civil Procedure, 1908
will not be applicable. The plaintiff contended that
the plaintiff got the knowledge of the facts of the
proposed amendments when the plaintiff received
the documents from defendant no.1 in May 2019.
Ld. Counsel for the plaintiff submitted that defendant
no.1 was intending to occupy, use and retain the
entire portion of open freehold land admeasuring
approximately 4000 sq. meters adjoining the area of
579.71 sq. meters where the old office structure was
located, in breach and contravention of the MOFA
agreements and the development agreement. Ld.
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Counsel for defendant no.1 submitted that defendant
No. 1 is entitled to carry out the construction over
any portion of Freehold land but should not exceed
579.71 sq. meters of plinth area. He pointed out that
the sanction plans do not disclose the construction of
the plinth area beyond 579.71 sq. meters and hence
the attempt of the plaintiffs to take favourable order
from this court under the guise of illegal construction
beyond the plinth area of 579.71 square metre is
nothing but abuse of process of law. Ld. Counsel for
defendant no.1 contended that the reliefs are time
barred. He would submit that plans are sanctioned
and the commencement certificate was issued in the
year 2009. The suit was filed in the year 2013 and
therefore the reliefs claimed by the plaintiffs in the
present chamber summons are time barred.
6. Ld. Counsel for the plaintiffs submitted that the
nature of original suit will not alter if the proposed
amendments are allowed. He further argued that the
Court cannot go into the merits of the amendment at
the time of considering application for amendment.
In support of his contentions, he placed reliance
upon the judgment of Hon'ble Apex Court in the
case of Prithi Lal Singh and another V/s Amrik
Singh and others, (2013) 9 Supreme Court Cases
576. On the same issue, he placed reliance upon
the judgment of Hon'ble Apex Court in the case of
L.C.Hanumanthappa(since dead)through his legal
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representative V/s H.B.Shivkumar, (2016) 1
Supreme Court Cases 332, wherein the Hon'ble
Apex Court held that,
“ All amendments ought to be allowed which satisfy the
two conditions:(a) of not working injustice to the
other side, and (b) of being necessary for the purpose
of determining the real questions is controversy
between the parties... but I refrain from citing further
authorities, as, in my opinion, they all lay down
precisely the same doctrine. That doctrine, as I
understand it, is that amendments should be refused
only where the other party cannot be placed in the said
position as if the pleading had been originally correct,
but the amendment would cause him as injury which
could not be compensated in costs. It is merely a
particular case of this general rule that where a
plaintiff seeks to amend by setting up a fresh claim in
respect of a cause of action which since the institution
of the suit had become barred by limition, the
amendment must be refused; to allow it would be to
cause the defendant an injury which could not be
compensated in costs by depriving hgim of a good
defence to the claim. The ultimate test therefore still
remains the same; can be amendment be allowed
without injustice to the other side or can it not.?”
7. The plaintiff again placed reliance upon the
judgment of Hon'ble Apex Court in the case of
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Mahila Ramkalidevi and others V/s Nandram
(dead) through legal representatives and others,
(2015)13 Supreme Court Cases 132, wherein the
Hon'ble Apex Court held that
“There is no impediment or bar against an appellate
Court permitting amendment of pleadings so as to
enable a party to raise a new plea. All that is
necessary is that the appellate Court should observe the
wellknown principles subject to which amendments of
pleadings are usually granted.
8. In the case of Prithlal(supra), the Hon'ble Apex Court
held that the Court in appropriate cases while
allowing the amendment, may restrict the application
of doctrine of relation back and permit the
amendment from the date of the application.
9. Thus, it is apparent from the law laid down in the
above said citation, that the doctrine relation back is
not universal. The Court can pass order/ directions
that the amendment would not relate back to the
date of the suit. I failed to understand how those
judgments are applicable to the case of the plaintiffs.
10. The plaintiff also placed reliance upon the judgment
of Hon'ble Supreme Court in the case of Ragu
Thilak D.John V/s. S.Rapappan and others,
(2001)2 Supreme Court Cases 472, wherein the
Hon'ble Supreme Court held that “the amendment
sought could not be declined. The dominant purpose
of allowing the amendment is to minimize the
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litigation.” In view of ratio laid down by the Hon'ble
Apex Court, the plea before trial cannot be looked
into and there is no quarrel that the amendment
should be allowed to minimize the litigation. He
further submitted that the parties cannot be
restricted from raising new cause of action and the
judgment of Mahila Ramakali Devi (supra) wherein
the Hon'ble Supreme Court reiterated the findings in
the case of Ishwardas V/s State of MP. There is no
quarrel about the said issue. At this stage, it is not
expected from the Court to go into the merits of the
amendment. The suit was instituted in the year
2013. The proposed amendment application is filed
in September 2019 seeking substantial amendment
and claiming the relief of even restraining the
defendant nos.1 and 2 from carrying out any
construction on any portion of the suit property.
Certain other reliefs are also claimed. At this
juncture, it would be very difficult to ascertain that
the reliefs are time barred or not. The facts which
are not disputed are that the suit was filed in the year
2013 and the amendment is sought in the year 2019.
The defendant no.1 has raised ground that certain
rights accrued in his favour that can't be taken away
by this amendment although he failed to elaborate
the same.
11. The defendant no.1 to support his contentions,
placed reliance upon the judgment of Sampath
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Kumar V/s Ayyakannu and another of Hon'ble
Supreme Court, (2002) Supreme Court Cases 559
wherein the Hon'ble Apex Court held that ,
”The merits of the avernments sought to be
incorporated by way of amendment are not to be
judged at the stage of allowing prayer for amendment.
However, the defendant is right in submitting that if he
has already perfected his title by way of adverse
possession then the right so accrued should not be
allowed to be defeated by permitting an amendment
and seeking a new relief which would relate back to the
date of the suit and thereby depriving the defendant of
the advantage accrued to him by lapse of time, by
excluding a period of about 11 years in calculating the
period of prescriptive title claimed to have been earned
by the defendant. The interest of the defendant can be
protected by directing that so far as the reliefs of
declaration of title and recovery of possession, now
sought for, are concerned the prayer in that regard
shall be deemed to have been made on the date on
which the application for amendment has been filed.
12. I have considered the law enunciated in the above
cited case. The facts appear to be similar with the
present case. The other aspect which is argued by
defendant no.1 is that cause of action has occurred
before filing of the suit and plaintiff deliberately wish
to alter the nature of suit and therefore amendment
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cannot be allowed. He has placed reliance upon the
judgment of Hon'ble Supreme Court in the case of
M/s.Ganesh Trading Co. V/s Moti Ram, (1978)2
Supreme Court Cases 91 wherein the Hon'ble
Apex Court held that
“It is true that, if a plaintiff seeks to alter the cause of
action itself and to introduce indirectly, through an
amendment of his pleadings, an entirely new or
inconsistent cause of action, amounting virtually to the
substitution of a new plaint or a new cause of action in
place of what was originally there, the Court will refuse
to permit it if it amount to depriving the party against
which a suit is pending of any right which may have
accrued in its favour, due to lapse of time. But, mere
failure to set out even an essential fact does not by
itself, constitute, a new cause of action. A cause of
action is constituted by the whole bundle of essential
fats which the plaintiff must prove before be can
succeed in his suit. It must be antecedent to the
institution of the suit. If any essential fact is lacking
from avernments in the plaint the cause of action will
be defective.”
13. I have considered law cited in the above case. But
prima facie it does not appear that the plaintiff is
coming with a new cause of action. The base of the
suit is illegal construction of residential premises is
the open land i.e. 579 sq. meters and the
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encroachment upon the other portion adjoining to
the open land. It is difficult to ascertain that the plea
raised by the plaintiff appears to be new. As pointed
above, the amendment sought can be allowed and
therefore chamber summons needs consideration but
the right of defendants cannot be prejudiced as
amendment is sought after six years of filing of suit.
Therefore, the caution has to be taken that the
amendment should not relate back to the date of
filing the suit. Hence, it is expedient to pass
following order:
ORDER
1. Chamber Summons No.1771/2019 is made
absolute in terms of prayer clause (a) and the
amendment is made applicable from the date of
filing the chamber summons.
2. The issue of limitation is kept open.
3. Plaintiff to carry out the amendment within
seven days of reopening of the court.
4. Costs in the cause.
5. Defendant is at liberty to file consequential
amendment, if any.
24/10/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 24/10/2019
Transcribed on : 19/11/2019
Signed on : 30/11/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
30/11/19 at 12.05 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
29/10/2019
Judgment and order signed by P.O. 30/11/2019
Judgment/order uploaded on 30/11/2019
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