Bombay High Court
Plot No.8 vs Mr. Vaibhav Jogalekar With Mr. ... on 22 November, 2013
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
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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.
The 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
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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
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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.
Heard 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
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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
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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
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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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