Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010119142019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 2107 OF 2019
IN
SUIT NO. 1593 OF 2015
Smt. Shaila Madhukar Gore ]
and Another. ]..Plaintiffs
V/s.
1. The Maharashtra Housing ]
and Area Development ]
Authority and others ]..Defendants
Advocate Mr. Rohan Karande for the plaintiff.
Advocate Ms. Mangal Kadam for defendant No.1/MHADA.
Advocate Mrs. Chandramore for defendant No.2/BMC.
Advocate Mr. Parshuram Phuria fo defendant No.3.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 6TH SEPTEMBER 2023
ORAL ORDER
The plaintiffs have taken out present Chamber Summons
seeking amendment in the plaint.
2 It is contention of plaintiffs that they have filed present suit
for declaration of Orders dated 28.04.2011 and 26.06.2015 passed
under section 95A of MHADA and subsequent notice dated 04.07.2015
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for vacation of the suit premises within 24 hours as illegal,
malafide,
bad-in-law and protection of their possession in respect of their two
separate premises being Room Nos.3 and 3A as mentioned in the plaint.
3. The plaintiffs’ application for interim reliefs was rejected.
The plaintiffs have challenged the said order by filing Appeal from
Order bearing No.211 of 2016 in the Hon’ble Bombay High Court. The
said Appeal from Order was disposed of by order dated 05.02.2016. By
subsequent consent order dated 17.02.2016 the said order was
modified and the Hon’ble Court ordered the defendant No.3 to hand
over the keys of the new alternate premises to the plaintiffs with
directions to them to shift to the same. Accordingly, the plaintiff shifted
to the new premises on or about 17.02.2016. Thereafter, the defendant
No.3 demolished the suit structures. Now the plaintiffs are claiming by
way of amendment in the plaint Order and Decree of this Hon’ble Court
against the defendant No.3 praying for reconstruction of Room No.3
and 3A on the first and second floor of the Building No.176 situated at
corner of plot land bearing S No.313, Vaidyawadi, V.J.Marg, Thakudwar,
Mumbai-400 002. The plaintiffs are also claiming alternative reliefs of
possession of two separate premises in lieu of Room Nos.3 and 3A
demolished by the defendant No.3.
4. It is further contention of the plaintiff that they are entitled
to two separate permanent alternate accommodations to the
redevelopment of the property, but defendant No.3/developer has given
only one permanent alternate accommodation premises in lieu of both
the rooms. The defendant No.1 has also illegally clubbed the two
separate premises i.e. Room Nos.3 and 3A into one premises for the
purpose of entitlement to permanent alternate accommodations.
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Hence, the plaintiffs are seeking amendment in the plaint for
declaration that the plaintiffs are entitled two separate alternate
accommodations and also seeking necessary consequential amendment
in the plaint and prayer clause of the plaint. Hence, the plaintiffs
prayed for allowing the Chamber Summons.
5. The defendant No.3 has filed reply to the Chamber
Summons and strongly opposed the same. It is submitted that the
proposed amendment is either irrelevant or is barred by the law of
limitation. The Schedule attached to the Chamber Summons indicate
that the plaintiffs were aware of the facts sought to be brought in by
way of proposed amendment, much before filing of the above suit.
Therefore, taking out of the present Chamber summons is hopelessly
barred by the law of limitation. The proposed amendment seeks to
change the nature of the suit and the alleged cause of action pleaded in
the plaint. The above suit is without cause of action. The attempt is to
fill up the lacunas in the plaint and take away the right accrued in their
favour to have the plaint rejected for want of cause of action.
6. Further, the plaintiffs have sought amendment in the plaint
regarding their entitlement of two rooms in lieu of room Nos.3 and 3A.
However, MHADA has certified only one permanent structure in regard
to room Nos.3 and 3A. The demolition of the said structure took place
long back by following due process of law. The proposed amendment is
therefore liable to be rejected. Hence, it is submitted that Chamber
summons be dismissed with costs.
7. Perused Chamber Summons and Affidavit in support of
Chamber Summons. Also perused Affidavit-in-reply filed by the
defendant No.3. Heard both the sides at length.
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8. The plaintiff has claimed that he wants to bring on record
the subsequent development as per the order of the Hon’ble High Court.
The plaintiff has also sought amendment regarding his entitlement of
two separate premises. Though the defendant No.3 has contended that
the plaintiffs are entitled to only one premises and MHADA has also
certified only one tenement for the plaintiffs, at this stage, it is not
necessary to go into the merits of the case, The plaintiffs have sought
amendment in pleadings and also sought further reliefs in the prayer
clause of the plaint.
9. The plaintiffs have sought amendment in prayer clauses by
adding prayers (d-1) to (d-6). So far as prayer clauses(d-1) and (d-2)
are concerned, the plaintiffs have sought declaration that the
demolition of the suit structures of the plaintiffs by the defendant No.3
in the year 2016 is illegal, unauthorized and against the law and that
this Court be pleased to order defendant No.3 to reconstruct the suit
premises being Room Nos.3 and 3A on first floor and second floor
respectively, as existed before the demolition. Now, it is pertinent to
note that the demolition of the suit structure of the plaintiffs are done
as per the order of the Hon’ble High Court itself. Therefore, the
plaintiffs cannot seek declaration that the demolition is illegal and
unauthorized and he also cannot seek to reconstruct of the said
premises which is demolished as per the order of the Hon’ble High
Court. Therefore, prayer clauses (d-1) and (d-2) are not tenable and
cannot be allowed. STherest of the prayer clauses d(3) to d(6) in the
proposed amendment in the schedule is allowed.
10. So far as entitlement of the plaintiffs and merits of the
reliefs claimed are concerned, it is not necessary to go into the merits of
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the case at this stage. The proposed amendment will not change the
nature of the suit altogether and the proposed amendment is necessary
for deciding the right between the parties finally. Therefore, I hold that
Chamber Summons deserves to be partly allowed. In the result, I
proceed to pass the following order:-
ORDER
1. Chamber Summons No. 2107 of 2019 is hereby
partly allowed.
2. The proposed amendment as per the Schedule
except prayer Clauses (d-1) and (d-2) annexed to the
Chamber Summons is allowed.
3. The plaintiffs to carry out necessary amendment in
the plaint as per the Schedule except prayer Clauses
(d-1) and (d-2) annexed to the Chamber Summons
within 14 days and further directed to place on record
amended copy of the plaint.
3. The plaintiffs are directed to supply amended
copies of the plaint to the defendants.
4 Chamber Summons No. 2107 of 2019 stands
disposed off accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 06/09/2023 Gr. Bombay.
Dictated on : 06/09/2023
Transcribed on : 06/09/2023
Signed on : 11/09/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11/09/2023 At 04.30 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
06/09/2023
Judgment/Order signed by P.O. on 11/09/2023
Judgment/Order uploaded on 11/09/2023
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