Final Order 1

Order Details: Chamber summons
Pdf Text: Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 1 Order.
MHCC010112542019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1979 OF 2019
IN
S.C. SUIT NO. 7442 OF 1983
1. Maruti Moru Deshmukh (Since
deceased)
A. Satish Maruti Deshmukh And Ors
.. Plaintiffs
V/s.
1. Shri. Anant Desai (since deceased).
A. Smt. Alka Anant Desai And Ors
... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 02/11/2023.
Appearance:-
Ld. Advocate Shri. Prashant Kulkarni for plaintiffs.
Ld. Advocate Shri. Ranveer Shekhawat for defendant Nos. 1(a) to 1(c).
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 2 Order.
Ld. Advocate Shri. Umesh Yerulkar for defendant No.13.
Ld. Advocate Shri. M.B. Babu for defendant Nos. 15 to 18.
Ld. Advocate Shri. Sameer Sawant for defendant Nos. 19 to 23.
ORDER
1. Plaintiffs have taken out this chamber summons for
amendment in plaint regarding subsequent events. Defendant Nos. 1(a)
to 1(c), defendant Nos. 16 and defendant Nos. 19 to 23 filed their reply
affidavits and opposed chamber summons. Defendant No.13 filed reply
affidavit supporting to the chamber summons.
2. I have heard Ld. Advocate Shri. Prashant Kulkarni for
plaintiffs, Ld. Advocate Shri. Ranveer Shekhawat for the defendant Nos.
1(a) to 1(c), Ld. Advocate Shri. Umesh Yerulkar for the defendant
No.13, Ld. Advocate Shri. M.B. Babu for the defendant Nos. 15 to 18
and Ld. Advocate Shri. Sameer Sawant for the defendant Nos. 19 to 23.
3. Plaintiffs have filed present suit for declaration that, the
agreement of sale dtd. 27-05-1975 between defendant No.1 and 4 is
null and void. Alternatively, plaintiffs have claimed rights as deemed
purchaser alongwith defendant No.1 and on the basis of said agreement
and his joint ownership with defendant No.1. During pendency of the
suit, one development agreement was executed by defendant Nos. 19 to
23 in respect of suit property. Plaintiffs have taken out Chamber
Summons No. 2354 of 2015 for amendment. Said chamber summons
was allowed by order dtd. 30-09-2016 and plaintiffs were allowed to
carry out amendment in the plaint in respect of development agreement
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 3 Order.
of the year 2012. The defendant Nos.15 to 19 challenged said order
vide Writ Petition No. 13791 of 2017 before the Hon’ble High Court.
Said writ petition came to be dismissed by order dtd. 15-03-2019.
Thereafter, plaintiffs came to know about further development
agreement dtd.11-02-2016 executed by defendant No. 19 to 23 in
respect of same suit property. Hence, the plaintiffs moved the present
chamber summons to bring on record by amendment the said
subsequent development and the development agreement dtd. 11-02-
2016 and sought relief that the development agreement is null and void
and not binding upon plaintiffs. Plaintiffs also sought proposed relief of
injunction till disposal of suit to be inserted by way of present
amendment.
4. Ld. Advocate for the plaintiff No.1 submitted that,
defendants suppressed development agreement dtd. 11-02-2016 while
deciding the Chamber Summons No. 2354 of 2015 and Writ Petition
No. 13791 of 2017 from this court and from the Hon’ble High Court.
The conduct of defendants was to not disclose the development
agreement before this court and the Hon’ble High Court. Said
development Agreement is in respect of the suit property and being
subsequent development, it needs to be brought on record in the
pleading and plaintiffs needs to seek relief in respect of the said
documents. Even though, valuation of the suit will be increased because
of the valuation of the property mentioned in the development
agreement dtd. 11-02-2016, but it would not be beyond pecuniary
jurisdiction of this court, and that cannot be a ground to reject the
chamber summons. Son of the plaintiffs obtained certificated copy of
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Ch.Sum No.1979/2019 in
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the said development agreement on 22-08-2019. Thereafter, chamber
summons is moved. Ld. Advocate for the plaintiffs prayed to allowed
the chamber summons. He relied upon following rulings:
a. Mount Mary Enterprises V/s. Jivratna Medi Treat Private
Limited, 2015 DGLS (SC) 113,
b. S.P. Chengalvaraya Naidu (Dead) by L.Rs. V/s. Jagannath
(Dead) by L.Rs, 1993 DGLS (SC) 1093.
5. Ld. Advocate Shri Shekhavat for the defendant Nos. 1(a) to
1(c) submitted that, no interim relief was granted in favour of plaintiffs
since 1983. Thus, there was no bar to execute development agreement.
There is no question of suppressing the fact of execution of
development agreement. Said agreement is registered document and
hence there is no suppression of fact. Proposed prayer clause (b) cannot
be incorporated in absence of temporary injunction in favour of
plaintiffs. Execution of development agreement dtd. 11-02-2016 is a
separate cause of action and therefore, plaintiffs ought to have file
separate suit. Ld. Advocate further argued that, consideration shown in
the development agreement is 7.75 crores, which is beyond the
pecuniary jurisdiction of this court and therefore, amendment cannot be
allowed. Under the garb of proposed amendment, plaintiffs are seeking
injunction against the defendants which they did not get since 1983.
Hence, he prayed to dismiss the chamber summons.
6. Ld. Advocate Shri. M.B. Babu for defendant Nos. 15 to 18
submitted that, the proposed amendment increases the valuation of the
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 5 Order.
suit. There is no question of suppression of the fact by defendants as
document is registered one. Amendment is not sought at the
appropriate stage. He prayed to dismiss the chamber summons.
7. Ld. Advocate Shri. Umesh Yerulkar for the defendant
No.13, supported to the plaintiffs.
8. Ld. Advocate Shri. Sameer Sawant for the defendant Nos.
19 to 23 submitted that, development agreement dtd. 11-02-2016 is the
public document and there is no suppression of the fact. It was executed
by the defendant Nos. 1(a) to 1(c) in view of probate granted in their
favour. Plaintiffs have not disclosed that as to how they got knowledge
of development agreement. When the plaintiff had knowledge of the
power of attorney, it is improbable that plaintiffs had no knowledge of
development agreement. The amendment is sought at the belated stage
and it is time barred. There is no privity of contract between the
plaintiffs and defendant Nos.19 to 23. By seeking amendment plaintiffs
are changing the nature of suit which is not permissible. Hence, Ld.
Advocate for the defendant Nos. 19 to 23 prayed to dismiss the
chamber summons. Ld. Advocate for defendant Nos.19 to 23 relied
upon ruling Asian Hotels (North) V/s. Alok Kumar Lodha, (2022)
8SCC 145.
9. I have considered submissions and perused the record. The
development agreement sought to be incorporated and challenge in the
pleading is executed by defendant Nos. 19 to 23. They were added as
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 6 Order.
defendants in the earlier amendment taken place in the year 2015.
Thus, parties to the suit had got executed said development agreement
from defendant Nos. 1(a) to 1(c) during pendency of suit. It appears
from the contents of the said development agreement that it is in
respect of suit property and there is reference of rights claimed by
deceased plaintiff No.1 in the present suit. Thus, execution of
development agreement is an important subsequent event in respect of
the subject matter of the suit. Plaintiffs are seeking declaration
regarding agreement for sale dtd. 27-05-1975. Plaintiffs alternatively
claimed right of ownership on the basis of said agreement. The right of
original plaintiff and subsequently of plaintiff No.1 and defendant Nos.
1(a) to 1(c) flows from same agreement. Defendant Nos. 19 to 23 got
executed development agreement dtd. 11-02-2016 from defendant Nos.
1(a) to 1(c) and agreement for sale dtd. 27-05-1975 is the foundation
of rights of defendant Nos. 1(a) to 1(c). Execution of the development
agreement between parties to the suit during the pendency of the suit is
an important subsequent event. Therefore the proposed amendment is
necessary.
10. Development agreement was executed on 11-02-2016. At
that time Chamber Summons No. 2354 of 2015 was pending for
hearing. It may be noted that, defendant Nos. 19 to 23 had not
disclosed the development agreement dtd. 11-02-2016 before this court,
at the time of hearing of Chamber Summons No. 2354 of 2015 nor
before the Hon’ble High Court in the Writ Petition No. 13791 of 2017. It
shows that, there is suppression of this material development.
Development agreement sought to be challenged is in respect of the suit
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 7 Order.
property and in between defendant Nos. 1(a) to 1(c) and defendant
Nos. 19 to 23. Hence, plaintiffs have right to challenge the same by way
of proposed amendment even though there is no temporary injunction
in favour of plaintiffs. The same cannot be a ground to incorporate the
rights of relief of prayer clause(b). Whether plaintiffs are entitled for
such relief is a matter of adjudication separately and for that reason
amendment cannot be refused.
11. So far as increase of valuation is concerned, recently the
pecuniary jurisdiction of this court is increased upto Rs.10 crores.
Hence, submission that the value of development agreement dtd. 11-
02-2016 would increase valuation of suit and it will be beyond
pecuniary jurisdiction of this court has no substance.
12. I have gone through the rulings relied upon Ld. Advocate
for the plaintiffs and defendants. In Asian Hotels (cited supra), the
licencee had sought to challenge the mortgages and charge of entire
property. Said mortgages were prior to licencee of plaintiff. Under
licencee agreement, licensor had right to create mortgage/charge. The
plaintiff was challenging the mortgages prior to the suit. In the instant
case, plaintiffs is alternatively claiming his co-ownership on the basis of
agreement of 1975 which is foundation of the rights of defendant Nos.
1(a) to 1(c) also. Thus, the facts of the instant case are quite different
then facts in the cited case. Hence, with due respect, said ruling is not
helpful to defendants.
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 8 Order.
13. For the above reasons, I hold that plaintiff is entitled for
proposed amendment and chamber summons deserves to be allowed.
Hence, I pass following order:
- ORDER -
1. Chamber Summons No. 1979 of 2019 is allowed in terms of
prayer clause (a).
2. Plaintiffs are permitted to carry out amendment as per
schedule annexed to chamber summons within limitation.
3. After carrying out amendment, amended plaint be served upon
defendants.
4. Chamber Summons No.1979 of 2019 is disposed off,
accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :02-11-2023 Gr. Bombay.
1. Dictated on : 02-11-2023
2. Transcribed on : 02-11-2023
3. Checked and Signed on : 04-11-2023
4. Delivered to Certified :
Copy Section on
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Ch.Sum No.1979/2019 in
S.C. Suit No.7442/1983. 9 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04-11-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 02-11-2023
Judgment/Order signed by P.O. on 04-11-2023
Judgment/Order uploaded on 04-11-2023
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