Bombay High Court
Civil Appellate Jurisdiction vs Lgc 1 Of on 22 November, 2013
Author: R. M. Savant
Bench: R. M. Savant
wp-10518.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10518 OF OF 2013
1] M/s. Sultanabad Villa Co-operative ]
Housing Society Ltd, having its office at ]
Plot No.4, Behram Baug Road, ]
Jogeshwari (West), Bombay 400 012 ]
]
2] M/s. Sultanabad Manzil Co-operative ]
Housing Society Ltd., having its office at ]
Plot No.5, Behram Baug Road, ]
Jogeshwari (West), Bombay - 400 012 ]
ig ]
3] M/s. Sultanabad Palace Co-operative ]
Housing Society Ltd., having its office at ]
Plot No.6, Behram Baug Road, ]
Jogeshwari (West), Bombay - 400 012 ]
]
4] M/s. Sultanabad Court Co-operative ]
Housing Society Ltd., having its office at ]
Plot No.8, Behram Baug Road, ]
Jogeshwari (West), Bombay - 400 012 ]
]
5] M/s. Sultanabad Mansion Co-operative ]
Housing Society Ltd., having its office at ]
Plot No.9, Behram Baug Road, ]
Jogeshwari (West), Bombay - 400 012 ]
]
6] M/s. Sultanabad Chamber Co-operative ]
Housing Society Ltd., having its office at ]
Plot No.13, Behram Baug Road, ]
Jogeshwari (West), Bombay - 400 012 ]
]
7] M/s. Sultanabad Arafat Co-operative ].. Petitioners
Housing Society Ltd., having its office at ] (Org. Plaintiffs)
Plot No.16, Behram Baug Road, ]
Jogeshwari (West), Bombay - 400 012 ]
Versus
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1 M/s. Mazda Construction Co. ]
A partnership firm duly registered under the ]
Indian Partnership Act, having it office at ]
101, Sultanabad Bhavan Co-op. Housing ]
Society Ltd., Behram Baug Road, Oshivara ]
Village, Jogeshwari (West) ]
Bombay - 400 102 ]
]
2 Shri Hasan Ali Raje Jalal, an adult, ]
Indian Inhabitant, having his office at ]
101, Sultanabad Bhavan Co-op. Housing ]
Society Ltd., Behram Baug Road, Oshivara ]
Village, Jogeshwari (West) ]
Mumbai - 400 102, who is the Chief ]
Promoter of Sultanabad Co-Operative
ig ]
Housing Society (Proposed) ]
]
3 M/s. Maredia Enterprises (Regd.), ]
A Partnership firm duly registered under the ]
Indian Partnership Act, through its Managing ]
Partner Shri Rashid Gulam Rasool Maredia ]
having its Office at Amina Manzil, ]
Behram Baug Road, Off. S.V. Road ]
Jogeshwari (West), Bombay-400 102 ]
]
4 M/s. Sultanabad Niwas Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.10, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
]
5 M/s. Sultanabad Mahal Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.11, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
]
6 M/s. Sultanabad Heaven Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.12, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
]
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7 Municipal Corporation of Greater Bombay ]
a Body Corporate incorporated under the ]
Provisions of the Bombay Municipal ]
Corporation Act, 1888 through the ]
Municipal commissioner and having office ]
at Mahapalika Marg, Bombay 400 001 ]
]
8 M/s. United Builders, ]
1404, Arcadia, N.C.P.A. Marg ]
Nariman Point, Bombay- 400 021 ]
]
9 M/s. Sultanabad Darshan Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.2, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
ig ]
10 M/s. Sultanabad View Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.7, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
]
11 M/s. Sultanabad Ashiana Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.14, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
]
12 M/s. Sultanabad Dwar Co-operative ]
Housing Society Ltd. having its office at ]
Plot No.15, Behram Baug Road ]
Jogeshwari (West), Bombay-400 102 ]
Mr. Vaibhav Jogalekar with Mr. Yatin R Shah for the Petitioners.
Mr. R C Sequira for the Respondent Nos.1 to 3 and 8.
None for the rest of the Respondents.
CORAM : R. M. SAVANT, J.
DATE : 22nd November 2013
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ORAL JUDGMENT
1 At the outset the learned counsel appearing on behalf of the Petitioners seeks deletion of the Respondent Nos.4 to 6 and Respondent Nos. 9 to 12 who according to him, are formal parties as they are not contesting parties before the Trial Court. The said Respondents are accordingly deleted at the risk of the Petitioners.
2 Rule, made returnable forthwith with the consent of the learned counsel for the parties and heard.
3 The above Writ Petition filed under Article 227 of the Constitution of India takes exception to the order dated 3/10/2013 passed by the learned Judge, City Civil Court, Bombay by which order the Application for amendment of the plaint being Chamber Summons No.1479 of 2013 in B.C.C.C. Suit No.4496 of 2010 came to be rejected.
4 In so far as the Respondent No.7 is concerned, by order dated 20/11/2013 the learned counsel for the Petitioners was directed to issue notice to the Respondent No.7-BMC in view of the fact that though the matter was substantially heard on 19/11/2013 and in spite of service, no appearance was lgc 4 of 10 ::: Downloaded on - 23/12/2013 20:27:46 ::: wp-10518.13 put up on behalf of the Respondent No.7-BMC. In pursuance of the said order dated 20/11/2013, a fresh notice has been issued to the Law Officer of the Respondent No.7-BMC, however, in spite of the said notice, no appearance is put up on behalf of the Respondent No.7-BMC. The learned counsel appearing on behalf of the Petitioners Shri Shah tenders a copy of the notice issued to the Respondent No.7-BMC which is taken on record and marked as "X" for identification.
5The Petitioners herein are the original Plaintiffs who have filed the suit in question being BCCC Suit No.4496 of 2010 for declarations which are contained in prayer clauses (a) to (d). The first 3 prayers, apart from the other Defendants, are also directed against the BMC. It is required to be noted that the BMC is party Defendant No.7 to the said suit. The present application for amendment i.e. Chamber Summons No.1479 of 2013 has its basis in the notice issued by the BMC to the occupants of the building in question i.e. the vacation notice given to one of the occupants of the building in question which is pursuant to the inspection report submitted by the Station Officer of the Fire Brigade Station in question, who had stated that in the absence of occupation certificate being granted, the occupants of the flats in the building would be hazardous. The Petitioners therefore by way of the said Chamber Summons were seeking to incorporate the averments by way of paragraph 22D, 22F, 22G, and 23A and delete prayer clause (d) from the prayers of the suit and add lgc 5 of 10 ::: Downloaded on - 23/12/2013 20:27:46 ::: wp-10518.13 prayer (e) after prayer (d). The Petitioners are also seeking relief by way of prayer clause (b) of the Chamber Summons by which a direction is sought against the BMC i.e. Defendant No.7 to take further steps as per the notice dated 3/12/2012 and not to allow any of the flat purchasers of the Defendant Nos. 3 and 8 to occupy the building in question.
6 The said Chamber Summons was opposed to on behalf of the contesting Defendant No.3 by filing Affidavit in Reply and the said reply as can be seen was focused on the relief sought by way of prayer clause (b) and the stand taken was that the said relief could not be granted to the Petitioners i.e. the Plaintiffs in view of various orders passed by this Court whilst the suit was pending in this Court. The said Chamber Summons was considered by the Trial Court and has been rejected by the impugned order dated 3/10/2013. The gist of the reasoning of the Trial Court as can be seen is that the proposed amendment is barred by Limitation Act and the learned Judge has referred to Section 527 of the Mumbai Municipal Corporation Act and has observed that it is belated. It has also been observed that the Petitioners do not have the occupation certificate in their favour in respect of their own building and it is further observed that this Court has refused the relief to the Petitioners on various occasions and therefore the prayer for amendment sought by the Plaintiffs cannot be considered. It has further been observed that if the amendment is allowed, great prejudice would be caused to the so called lgc 6 of 10 ::: Downloaded on - 23/12/2013 20:27:46 ::: wp-10518.13 purchasers of the flats in the building in respect of which the relief by way of prayer clause (b) is sought and the amendments are sought to be incorporated . The learned Judge has finally observed that the Plaintiffs are seeking relief of temporary injunction by way of prayer clause (b) which is not permissible. As indicated above it is the said order dated 3.10.2013 by which application for amendment of the plaint has been rejected is taken exception to by way of above Petition.
7Heard the learned counsel for the parties i.e. Shri Jogalekar for the Petitioners and Shri Sequira for the Respondent Nos.1 to 3 and 8. The learned counsel appearing for the Petitioners Shri Jogalekar at the outset would submit that the Petitioners would not press prayer clause (b) of the Chamber Summons in view thereof what remains for consideration is only the incorporation of the amendment by way of introduction of the Paragraphs which have been adverted to herein above. It is submitted by the learned counsel for the Petitioners that the said amendments are necessary to incorporate the facts which have occurred after filing of the Petition and are based on notices issued by the BMC to the flats purchasers/occupants of the building in question which notices are based on the report submitted by the Station Officer of the concerned Fire Brigade Station. The learned counsel would therefore contend that since the amendment relates to the subsequent events which have occurred they are germane to the adjudication of the suit in lgc 7 of 10 ::: Downloaded on - 23/12/2013 20:27:46 ::: wp-10518.13 question, the Trial Court had therefore erred in rejecting the Chamber Summons.
8 Per contra, Mr. Sequira, the learned counsel appearing on behalf of the Respondent Nos.1 to 3 and 8 by relying upon the order dated 11/7/2011 passed by the Division Bench of this Court in Writ Petition No.2237 of 2010 wherein the order came to be passed on the basis of the statement by the BMC would contend that since the Plaintiffs interests are protected by the said order, there is no warrant to amend the plaint. The learned counsel would contend that the Petitioners are not entitled to the relief sought by way of clause (b) of the Chamber Summons in view of the said order of the Division Bench. The learned counsel would contend that the issue of limitation would also arise if any relief is sought on the basis of the averments which are not sought to be incorporated by way of the amendment.
9 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. The suit as originally filed revolves around the controversy as regards utilization of the FSI in respect of the Plaintiffs plot by the contesting Defendants. As indicated above, the reliefs sought in the suit are also directed against the BMC as it is the BMC's statutory duty to control and regulate the development in the city of Mumbai. The BMC has been joined as the Defendant No.7 to the suit. The Trial Court as can be lgc 8 of 10 ::: Downloaded on - 23/12/2013 20:27:46 ::: wp-10518.13 seen has considered the application for amendment and has rejected it on the ground that it is barred by limitation under Section 527 of the Mumbai Municipal Corporation Act. It is required to be noted that Section 527 of the Mumbai Municipal Corporation Act posits a notice being issued to the BMC in respect of any matter which a party seeks to take to the court against the BMC within the time frame which is stipulated in the said provision and the suit is required to be commenced within six months next after the accrual of the cause of action. Hence the notice if any has to be given at the inception of the suit and the period would therefore apply to the said notice and not to any subsequent amendment which is to be carried out in the suit. In the instant case, it appears that prior to the inception of the suit, a notice was given to the BMC and thereafter the suit was instituted, the BMC as mentioned herein above is the Defendant No.7 to the suit as originally filed. In my view, therefore, the Trial Court had erred in observing that the suit is barred by limitation by probably referring to the 3 months period which is mentioned in the said provision. It is well settled that if an issue of limitation arises in respect of a relief which is based on the amendments which are sought in the plaint, the said issue can be kept open for being adjudicated at the appropriate time. However, considering the fact that what is now sought to be introduced are the events subsequent to the filing of the suit, it would be just and proper that the amendments are allowed so that there is a complete adjudication of the lis between the parties. Since the learned counsel for the Petitioners Shri lgc 9 of 10 ::: Downloaded on - 23/12/2013 20:27:46 ::: wp-10518.13 Jogalekar has submitted that the Petitioners would not press prayer clause (b), the said part of the amendment application need not be considered. In that view of the matter, the above Writ Petition is allowed in so far as the amendments sought vide prayer clause (a) of the Chamber Summons is concerned. The issue of limitation is kept open, if any reliefs are sought on the basis of the amended plaint, for being adjudicated at the appropriate time.
The amendments to be carried out within a period of four weeks from date and the copies of the amended plaint to be served on the concerned Defendants within a period of two weeks thereafter. The concerned Defendants would be entitled to file their Additional Written Statements if so advised within the time fixed by the Trial Court. Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
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