Bombay High Court
Jyoti Corporation vs Smt. Sonali M. Jagtap And Ors on 24 August, 2023
Bench: Amit Borkar
2023:BHC-AS:24215
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10375 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Arun Virajlal Gohil & Ors. ... Respondents
WITH
WRIT PETITION NO.10380 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Omprakash H. Bhatia ... Respondent
WITH
WRIT PETITION NO.10381 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Bharti Murgesan & Ors. ... Respondents
WITH
WRIT PETITION NO.10382 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Bhaskar R. Waval & Ors. ... Respondents
WITH
WRIT PETITION NO.10383 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Sunil Srichand Narang & Ors. ... Respondents
WITH
WRIT PETITION NO.10384 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Gopal T. Talreja & Ors. ... Respondents
1
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WITH
WRIT PETITION NO.10386 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Rajmukari Harilal Bhatia,
since deceased ... Respondents
WITH
WRIT PETITION NO.10387 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Sonali M. Jagtap & Ors. ... Respondents
WITH
WRIT PETITION NO.10388 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Tikamdas Tejumal Talreja & Ors. ... Respondents
WITH
WRIT PETITION NO.10390 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Sundaram Pechi, since deceased
through legal heirs & Ors. ... Respondents
WITH
WRIT PETITION NO.10391 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Lata Srichand Narang & Ors. ... Respondents
WITH
WRIT PETITION NO.10392 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Madhu A. Gandhi & Ors. ... Respondents
2
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WITH
WRIT PETITION NO.10407 OF 2023
Jyoti Corporation ... Petitioner
V/s.
Avinash R. Wavahal ... Respondent
Mr. H.R. Pawar for the petitioner.
Mr. Amrut Joshi with Ms. Kavita Sharma i/by Ganesh &
Co., for respondent No.1 in all WPs.
CORAM : AMIT BORKAR, J.
DATED : AUGUST 24, 2023
P.C.:
1. All these writ petitions contain common question of law and
facts and, therefore, are being decided by common judgment.
2. The petitioner is the owner of the suit structure. Respondent
No.1 in each petition is the occupant. Respondent No.2-
Corporation issued notice for demolition of structure occupied by
respondent No.1 in exercise of power under section 351 of the
Bombay Municipal Corporation Act. Respondent No.1 in all civil
writ petitions filed different suits challenging notice issued under
section 351 of the Bombay Municipal Corporation Act, 1888. The
ground for challenge in each suit is similar. Parties led their oral
evidence. According to the petitioner, in the cross-examination of
the owner, it is revealed that the owner settled dispute with
similarly situated occupants by paying different amounts. Schedule
of one of the agreement contains a recital that such structure was
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in existence since 1960. Respondent No.1, therefore, filed a
chamber summons for amendment of the plaint to incorporate
pleadings in relation to alleged agreement executed by the owner
with similarly situated occupants. It is also averred that the City
Civil Court protected the occupants of similarly situated shops in a
civil suit. Broadly the amendment incorporates aforesaid two
factors.
3. The trial Court by the impugned order allowed the
amendment. The petitioner (owner) has, therefore, filed present
petitions.
4. According to the learned advocate for the petitioner (owner),
the amendment was not necessary for deciding real controversy
between the parties. The facts narrated in the schedule of
amendment were within the knowledge of the plaintiff before
filing of suit and, therefore, there is no diligence. According to
him, the property which was subject matter of the judgment
claimed in the schedule of amendment was totally different
property in different premises and, therefore, such judgment has
no relevance with the controversy involved. According to him,
agreement containing recital of existence of structure prior to 1960
has not been signed by the owner and it has no relevance with the
suit structure. He submitted that the suit having been fixed for
final arguments, at this stage, amendment of plaint cannot be
permitted. In support of his submissions, he relied on following
judgments:
a) Vijay Hathising Shah & Anr v. Gitaben Parshottamdas Mukhi
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& Ors. reported in (2019) 5 SCC 360;
b) Vidyabhai & Ors. v. Padmalatha & Anr. reported in 2009 (1)
All MR 471; and
c) Life Insurance Corporation of India v. Sanjeev Builders Pvt.
Ltd. & Ors. reported in (2022) 7 SCC 864.
5. Per contra, learned advocate for the plaintiff submitted that
filing of application for amendment was the outcome of cross-
examination of the owner. The cross-examination of owner
containing relevant statements was conducted on 24 th April 2023.
The application for amendment was filed on 28 th April 2023.
According to him, the agreement sought to be relied upon in the
schedule of amendment contains a recital of existence of similarly
situated structure prior to 1960. The judgment relied upon is also
in respect of similarly situated structure. Whether the structures
were similarly situated or not is the matter of merit. At this stage,
it is not necessary to consider the said aspect. According to him,
the scope of challenge to the order of allowing amendment has
been settled by the judgments of this Court and the Apex Court. In
the absence of perversity in the reasoning or absence of
jurisdictional fact, existence of jurisdictional fact, the trial Court
was within its right to allow the amendment as once the
satisfaction is recorded on the point of jurisdictional fact, the Court
needs to consider aspect of necessity to decide real controversy
between the parties. The trial Court having exercised discretion in
favour of the petitioner, the superior Court in exercise of power
under Article 227 of the Constitution of India would not interfere
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with positive exercise of jurisdiction. He also submitted that the
impugned order is capable of being challenged under section 151
of the Civil Procedure Code, 1908, and therefore, at this stage no
interference is called for. In support of his submission, he relied on
following orders of this Court:
a) Surendra Dejoo Shetty v. Smt. Irene George Lobo & Anr. in
Civil Writ Petition No.7000 of 2010 (Principal Seat) decided on 19
October 2010;
b) Wenceslaus H. Gonsalves Clovis Gonsalves & Ors v. Hill
Dream Co-operative Housing Society Ltd. & Ors. in Civil Writ
Petition No.4242 of 2016 (Principal Seat) decided on 10 October
2016;
c) Waman Khente v. Sheikh Faheem & Ors., in Civil Writ
Petition No.4276 of 2017 (Nagpur Bench) decided on 23 June
2022; and
d) Santosh Babu Tubki & Anr. v. Raghoba Sawant (Dec.) & Ors.
in Civil Writ Petition No. 311 of 2022 (Goa Bench) decided on 9
February 2023.
6. Having perused the document on record, it needs to be
noted that scope of the suit challenging notice under section 351
of the MMC Act is to decide whether the impugned structure is
prior to datum line of 1st April 1962 or whether the structures are
constructed after due permission from planning authority.
According to the plaintiff, his case falls in first category. It was,
therefore, necessary for the trial Court to adjudicate as to whether
the suit structure was in existence prior of 1st April 1962.
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7. On perusal of the cross-examination, it appears that the
owner has stated as under:
"10. ... I have made complaint to MCGM. Out of 50
structures some of the occupiers vacated the shops. To vacate
premises to them I have paid them some amount. I have
entered into agreement with them at the time of vacating
shops. I cannot produce said agreement. ..."
8. Said statements were made on 24th April 2023. The
application for amendment has been filed on 28th April 2023.
There is no material on record that the plaintiff was aware of
existence of agreement referred in the cross-examination prior to
filing of the suit. Prima facie, therefore, it appears that the fact of
paying occupiers of vacated structure was brought to the notice of
plaintiff on 24th April 2023 and the application for amendment
having been filed on 28th April 2023, the plaintiff has satisfied
jurisdictional fact of due diligence.
9. The next question is as to whether the amendment is
necessary for the purpose of deciding real controversy between the
parties. As stated earlier, it is the case of the plaintiff in paragraph
Nos.21 and 22 of the schedule of the amendment that the
structure covered by the agreement referred in paragraph No.22 of
the schedule is similarly situated with the suit structure. Therefore,
it is for the trial Court to decide as a matter of fact the structure is
similarly situated or not but at this stage, it is not necessary to go
into merits of the claim of the plaintiff. Similar would be the
situation in relation to the judgment relied upon in paragraph
No.27 of the schedule of amendment. It is for the trial Court to
decide on merits as to whether the suit structures are similarly
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situated with the structures covered by the judgment referred in
paragraph No.27.
10. However, accepting the averments made by the plaintiff in
paragraph Nos.21 and 27, claiming similarity along with pleading
in paragraph Nos.4(a) and 4(b) of the plaint which, at this stage,
alleged element of commonality. As stated earlier, it is for the trial
Court to decide whether the structures are similarly situated or
whether the recital in the alleged agreement which is denied by
the owner is similarly situated with the suit structure. Therefore, in
my opinion, the amendment was necessary to decide real
controversy between the parties.
11. In so far as the judgment relied upon by the petitioner is
concerned, it appears that the Apex Court has consistently held
that finding on due diligence would be jurisdictional fact and in
absence of satisfaction on jurisdictional fact, application for
amendment in a suit filed after 2002 cannot be allowed. As held
earlier, in view of satisfaction recorded by this Court in earlier part
of the judgment, I am satisfied that the plaintiff could not have
filed such application before 28th April 2023 as the facts came to
the knowledge of the plaintiff on 24th April 2023.
12. On overall consideration of the matter and in the absence of
perversity being pointed out, it is not necessary to interfere with
the impugned orders.
13. The civil writ petitions are, therefore, dismissed. No costs.
14. Considering the fact that the suit is of the year 2012 and the
stage at which the application for amendment is filed, the trial
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Digitally
signed by
VAIBHAV
VAIBHAV RAMESH
Court is directed to decide the suits finally within three months
RAMESH JADHAV
JADHAV Date:
2023.08.24
19:07:42
from today.
+0530
(AMIT BORKAR, J.)
