[Cites 9, Cited by 0]
Bombay High Court
Shirin Munir Merchant vs Prince Aly Khan Hospital And Ors. on 3 February, 2026
2026:BHC-AS:161
FA-1807-2025(final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1807 OF 2025
Shirin Munir Merchant ]
Age: 63 years, Occ.- Housewife, ]
Resi. Add. - Room No. 12-C, ]
Amynabad, Aga Hall Estate, ]
Nesbit Road, Mumbai - 400010 ] ...Appellant
Versus
1) Prince Aly Khan Hospital, ]
Aga Hall, Nesbit Road, Mazagaon, Mumbai- ]
400 010. ]
]
2) Amin Manekia, Trustee ]
3) Amir Ali Kotadia, Trustee ]
4) Mrs. Almas Manekia, Trustee, ]
All adults, Indian Inhabitant, ]
Having their office address at, ]
Prince Aly Khan Hospital, ]
Aga Hall, Nesbit Road, ]
Mazagaon, Mumbai-400 010 ]
5) The Chief Offier, M. B.R. & R Board, (MHADA ]
Unit) ]
Griha Nirman Bhavan, Kalanagar, Bandra ]
(East), Mumbai-400 051. ]
6) The Executive Engineer, E-1 Division, M.B. R. ]
& R Board, ]
Ground Floor, bldg. No. 34, ]
Abhuday Nagar, Kala Chowki, ]
Mumbai- 400 033. ]
7) Maharashtra State Board of Wakf, ]
through its C.E.O. ]
Office at Panchakki, Aurangabad. ] ...Respondents
Mr. S. M. Gorwadkar a/w Ms. Renuka Gorwadkar, Mr. Swaraj Savant, Mr. Varun
Thanawala, Mr. Soham Lande i/b Mr. Yusuf Baugwala, for the Appellant.
Mr. Yusuf Mucchala a/w Mr. Sagheer Khan, Mr. Aqil Khan, Ms. Afsha Khan, Ms.
Fatima Rumani i/b Judicare Law Associates, for the Respondent Nos. 1 to 4.
Arya Chavan 1/16
FA-1807-2025(final).doc
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : January 12th, 2026
PRONOUNCED ON : February 03rd,2026
-------------
JUDGMENT:
1. Heard.
2. Admit. With consent taken up for final disposal.
3. The present Appeal is at the instance of the original
Plaintiff in Waqf Suit No 175 of 2019 challenging the order dated 17 th
January, 2025 rejecting the Appellant's application for amendment of
the plaint. The parties are referred to by their status before the Waqf
Tribunal.
4. Waqf Suit No. 175 of 2019 was filed seeking a declaration
inter alia that the No Objection Certificates (for short 'NOCs") issued by
MHADA authorities to Defendant No. 1 are illegal, null and void ab initio
and not binding on the waqf institution and for quashing and setting
aside the same. The plaint came to be amended on 8th April, 2022 and
further relief of status quo on the trust properties and restraint order
against Defendant No 1 was sought.
5. The Defendant Nos 1 to 3 filed their written statement
raising an objection to the jurisdiction of the wafq tribunal disputing the
Defendant No. 1's status as waqf or that its properties are waqf
FA-1807-2025(final).doc
properties. It was contended that the suit has been filed on erroneous
assumption that the property of Defendant No.1 and/or Defendant No.
1 itself is shown in the list of auqaf dated 5 th May, 2005, whereas the list
was withdrawn by the Waqf Board by its notification dated 23 rd
February, 2008. It was stated that Defendant No. 1 is a trust registered
under the provisions of Maharashtra Public Trust Act, 1950 and is not a
waqf as per Section 3 of the Waqf Act, 1955. The Defendant No. 1 is
registered with Charity Commissioner and has never been registered
with the Waqf Board.
6. On 23rd October, 2024, an application for amendment below
Exhibit 90 was filed by the Plaintiff under Order VI Rule 17 of the Code
of Civil Procedure, 1908 (CPC) proposing incorporating of additional
relief of declaration that the Defendant No 1's properties are waqf
properties and for consequential amendments, which was opposed by
the Defendant No 1. By the impugned order dated 17 th January, 2025,
the Tribunal rejected the amendment application leading to the present
Appeal.
7. Mr. Gorwadkar, learned senior advocate appearing for the
Appellant would submit that the amendment was necessitated by
reason of subsequent development,which was the order of Hon'ble
Apex Court giving rise to cause of action to seek declaration that the
Defendant No 1's properties are waqf properties. Pointing out to the
FA-1807-2025(final).doc
pleadings in the plaint, he submits that there are sufficient assertions in
the plaint laying the foundation for seeking the additional relief of
declaration of status of Defendant No 1 as waqf. He submits that the
Defendant No 1 had approached the Bombay High Court challenging
the constitution of State Board of Waqf and had also preferred Waqf
suit seeking deletion of the Defendant No 1 from the list of waqfs dated
5th May, 2005. He submits that in those proceedings, the Bombay High
Court directed the Survey Commissioner to take into consideration the
bifurcation list and other list in existence at the time of conducting
survey proceedings, which order was challenged by State Board of
Waqf before the Hon'ble Apex Court to which present Defendant No 1
was party. He submits that the Hon'ble Apex Court opened a window
for the Respondents such as Defendant No 1 whose case had been
accepted by the Bifurcation Committee and the list of waqfs dated 13 th
November, 2003 and 30th December, 2004 were set aside and they were
directed to approach Defendant No. 7-Waqf Board for determination of
their status as per provisions of Section 5 of the Waqf Act, 1995. He
submits that the Defendant No 1 did not approach the committee
within the time frame and Defendant No 1 was transferred to the waqf
board, and hence, the proposed amendment.
8. He submits that the Tribunal rejecting the application for
amendment firstly by going into the merits of the matter to come to a
FA-1807-2025(final).doc
conclusion that the Defendant No. 1 does not come under the purview
of the order of the Hon'ble Apex Court and secondly on the ground of
limitation. He submits that in the case of Rajesh Kumar Aggarwal and
Others vs K. K. Modi and Others 1 the Hon'ble Apex Court has held that
while considering the application for amendment, the Court should not
go into the correctness or falsity of the case of amendment and should
not record a finding on the merits of the amendment.
9. He submits that in so far the other ground of limitation is
concerned, the position has been settled by the decision of Hon'ble
Apex Court in Life Insurance Corporation of India vs Sanjeev Builders
Private Limited And Another 2. He submits that the proposed
amendment is necessary for effective adjudication of the dispute and as
held by the Hon'ble Apex Court, delay cannot be a ground for rejection
and where the aspect of delay is arguable, the issue of limitation can be
framed separately for decision. He submits that the Tribunal has read
the findings of the Hon'ble Apex Court in the said decision in isolation
and has rejected the amendment on the ground of the amendment
being time barred claim. He submits that the Respondent has not raised
the issue of jurisdiction and there is bare denial to its status as waqf in
the written statement.
10. Per contra, Mr. Muucchala, learned senior advocate
1 AIR 2006 SC 1647
2 (2022) 16 SCC 1
FA-1807-2025(final).doc
appearing for Respondent No 1 would submit that the amendment
sought a declaration as regards the status of the Defendant No. 1,
which amendment was time barred by virtue of which valuable right had
accrued by lapse of time. He would further submit that the proposed
amendment changes the nature of the suit from challenging the NOCs
granted for re-development into a suit seeking declaration of status. He
would further submit that the application itself is actuated by malafide,
and therefore, ought not to be allowed. He submits that there is no
basis in the plaint for pleading that the Defendant No. 1 is Waqf which
contention was denied firstly at the stage of filing reply to Exhibit 5
application for injunction and subsequently in the written statement. He
submits that the decision of the Hon'ble Apex Court does not give rise
to fresh cause of action as the Hon'ble Apex Court has restored the list
of waqf dated 13th November, 2003, wherein the Defendants name is
admittedly not included. He submits that by the proposed amendment,
a time barred relief is being sought which is not permissible. He submits
that none of the subsisting list declares the Defendant No. 1 as waqf,
and therefore, there is no basis for the proposed amendment.
11. He submits that even by excluding the period of Covid 19
pandemic, the proposed amendment is barred by limitation. He submits
that by refusing amendment, the Court has granted discretionary relief,
which ought not to be interfered with as no perversity is demonstrated.
FA-1807-2025(final).doc
He submits that the decision of Life Insurance Corporation vs Sanjeev
Builders Private Limited and Others (supra) specifically rules out a
time barred claim being introduced by way of proposed amendment. He
would submit that pursuant to the NOCs granted, the construction has
already been put up. In support, he relies upon the following
decisions:-
i) Maulvi Muhammad Fahimal Haq vs Jagat Ballav
Ghosh3
ii) Krishnaji Anajee Bhute vs Dhandajee And
Others4
12. The facts of the case would give rise the following points
for determination:
(i) whether the proposed amendments introduces a new
cause of action or changes the nature of the suit.
(ii) whether the proposed amendments cannot be
permitted as it seeks to introduce a time barred claim.
AS TO POINT NO. (i) :
13. The plaint as initially filed challenged the NOCs issued by
MHADA for re-development of the Defendant No 1's properties. The
plaint proceeds on the basis that the Defendant No 1 is a waqf and its
3 1922 SCC Onl Pat 205
4 AIR 1930 Bom 61
FA-1807-2025(final).doc
properties are waqf properties. In paragraph 13 of the plaint, it is
pleaded that the Defendants had approached the Charity Commissioner
for seeking sanction for re-development, which was without jurisdiction
as the trust registration done under B series had been transferred to
waqf board pursuant to government notification. In paragraph 16, it is
pleaded that the Defendant No 1 is declared as waqf vide notification
dated 5th May, 2005. In paragraph 19, it is pleaded that Defendant Nos 2
to 4 do not have any authority to develop the waqf property as per
interim order of Hon'ble Apex Court dated 11 th May, 2012. In paragraph
20 of the plaint, it is pleaded that the NOC issued by MHADA is against
the provisions of Waqf Act, 1955.
14. A holistic reading of the plaint would indicate sufficient
assertions as regards the status of the Defendant No 1 as waqf. Indeed
it is the very basis for the challenge to the NOCs issued by MHADA.
Armed with the case of the Defendant No 1 being a waqf, the suit was
filed before the waqf tribunal. This specific case of the Plaintiff has
been denied in the written statement raising a preliminary objection to
the very jurisdiction of the Tribunal. The contention is that the suit has
been filed on erroneous assumption that the property of Defendant No
1 or Defendant No 1 itself is shown in the list of waqfs dated 5 th May,
2005. The rival pleadings on record gave rise to material proposition of
fact and the denial of its status as waqf would require framing of
FA-1807-2025(final).doc
necessary issues as regards the jurisdiction of the Tribunal which would
entail an inquiry into the status of the Defendant No 1 as waqf. Even
though the suit was filed challenging the NOC's issued by MHADA, the
Tribunal would be required to go into the incidental and ancillary
question of the status of the Defendant No 1 irrespective of whether
any relief of declaration of Defendant No 1 as waqf was sought or not.
The proposed amendment though pleaded on the subsequent cause of
action of order of Hon'ble Apex Court seeks to incorporate an additional
relief of declaration of the status of Defendant No 1, which even
otherwise was required to be gone into for proper adjudication of the
controversy in dispute. The proposed amendments did not introduce
any fresh cause of action and did not change the character of the suit.
The Defendant No 1 by reason of the amendment did not have to meet
any new claim. Hence, Point No (i) is answered accordingly.
AS TO POINT NO (ii):
15. The Plaintiff's application for amendment is filed in the year
2024 based on the cause of action being the subsequent order of the
Hon'ble Apex Court. The schedule of amendments seeks to incorporate
the pleadings about the litigation instituted by the Defendant No 1 in
the Bombay High Court, the Waqf suit of the year 2007, the order of
Hon'ble Apex Court and the resultant consequence of being transferred
to the waqf board by not approaching the committee within the
FA-1807-2025(final).doc
prescribed time limit. The contention that due to failure to approach the
committee within the time frame fixed by the Hon'ble Apex Court has
resulted in Defendant No 1 being transferred to waqf board is an issue
of fact to be decided in trial.
16. The Tribunal ventured into the merits of the amendment to
arrive at a finding that the Defendant No 1 is neither in the list of auqaf
dated 13th November, 2003 which relates to Bombay region nor in the
list of auqaf dated 30th December, 2004. It holds that the list of auqaf
dated 5th May, 2005 has already been withdrawn in which the name of
Defendant No 1 did find place. It held that the name of Defendant No 1
does not find place in the report of bifurcation committee either as
waqf or a trust and the name of Defendant No 1 was found in the list of
auqaf dated 5th May, 2005 which has been withdrawn on 23rd February,
2008. It held that the Defendant No 1 does not come under the purview
of the order of the Hon'ble Apex Court and rejected that the cause of
action arose due to subsequent event i.e. passing of judgment of
Hon'ble Apex Court dated 20th October, 2022. The findings of the
Tribunal practically gives finality to the issue of jurisdiction and status of
Defendant No 1 as not being a waqf, which issue required evidence to
be led. There cannot be any dispute about the settled position in law
that while adjudicating the application for amendment, it is
impermissible to venture into the merits of the amendment, which is
FA-1807-2025(final).doc
precisely what has been done by the Tribunal rendering the decision
vulnerable.
17. The other ground for rejection of the proposed
amendments is that the declaration seeking the status of the
Defendant No 1 as waqf is time barred claim. The suit was filed on 17th
October, 2019 and in the reply to Exhibit 5 filed on 4 th November, 2019 it
was asserted that the suit property is not a waqf property but a trust
property and the Defendant No. 1 is a trust and not a waqf. This denial
can also be found in the written statement filed on 15 th January, 2021.
The amendment application filed in 2024, contended that as per the
order of Hon'ble Apex Court, the Defendant No. 1 failed to approach
the five member committee within the time frame and the Defendant
No. 1 was transferred to the Waqf Board, and hence, its properties are
governed under the Waqf Act, 1955.
18. In case of Life Insurance Corporation of India vs Sanjeev
Builders Private Limited and Another (supra), the Hon'ble Apex Court
has laid down the guiding principles in the context of adjudication of
amendment application. The Hon'ble Apex Court concluded its findings
in paragraph 71 as under:-
71.1 Order 2 Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application
thereof are satisfied and the field of amendment of
pleadings falls far beyond its purview. The plea of
FA-1807-2025(final).doc
amendment being barred under Order 2 Rule 2 CPC is, thus,
misconceived and hence negatived.
71.2 All amendments are to be allowed which are necessary
for determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word "shall",
in the latter part of Order 2 Rule 2 CPC.
71.3 The prayer for amendment is to be allowed
71.3.1 if the amendment is required for effective and proper
adjudication of the controversy between the parties,
71.3.2. to avoid multiplicity of proceedings, provided,
(a) the amendment does not result in injustice to the other
side,
(b) by the amendment, the parties seeking amendment does
not seek to withdraw any clear admission made by the party
which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable accrued
right (in certain situations).
71.4 A prayer for amendment is generally required to be
allowed unless:
71.4.1 by the amendment, a time barred claim is sought to
be introduced, in which case the fact that the claim would
be time barred becomes a relevant factor for consideration,
71.4.2 the amendment changes the nature of the suit,
FA-1807-2025(final).doc
71.4.3 the prayer for amendment is malafide, or
71.4.4 by the amendment, the other side loses a valid
defence.
71.5 In dealing with a prayer for amendment of pleadings,
the court should avoid a hypertechnical approach, and is
ordinarily required to be liberal especially where the
opposite party can be compensated by costs.
71.6 Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment
should be allowed.
71.7 Where the amendment merely sought to introduce an
additional or a new approach without introducing a time
barred cause of action, the amendment is liable to be
allowed even after expiry of limitation.
71.8 Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in
the plaint.
71.9 Delay in applying for amendment alone is not a ground
to disallow the prayer. Where the aspect of delay is
arguable, the prayer for amendment could be allowed and
the issue of limitation framed separately for decision.
71.10 Where the amendment changes the nature of the suit
or the cause of action, so as to set up an entirely new case,
foreign to the case set up in the plaint, the amendment
must be disallowed. Where, however, the amendment
FA-1807-2025(final).doc
sought is only with respect to the relief in the plaint, and is
predicated on facts which are already pleaded in the plaint,
ordinarily the amendment is required to be allowed.
71.11 Where the amendment is sought before
commencement of trial, the court is required to be liberal in
its approach. The court is required to bear in mind the fact
that the opposite party would have a chance to meet the
case set up in amendment. As such, where the amendment
does not result in irreparable prejudice to the opposite
party, or divest the opposite party of an advantage which it
had secured as a result of an admission by the party seeking
amendment, the amendment is required to be allowed.
Equally, where the amendment is necessary for the court to
effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed.
(See Vijay Gupta v. Gagninder Kr. Gandhi.)
19. The decision emphasizes and reiterates the well settled
principle that all amendments which are necessary for effective and
proper adjudication of the controversy in dispute should be allowed. In
context of time barred claim, it carves out an exception where the
amendment raising time barred claim results in divesting the other side
of valuable accrued right and where a time barred claim is sought to be
introduced, the fact that the claim is time barred becomes a relevant
factor for consideration.
20. Applying the said principles to the facts of the present case,
FA-1807-2025(final).doc
it cannot be disputed that irrespective of whether the amendment is
allowed or not, the status of the Defendant No 1 as waqf would be an
issue in the suit and the Tribunal in order to answer the issue of
jurisdiction would be bound to render a finding on the status of the
Defendant No 1 as waqf. For answering the issue, evidence will be
required to be led by both the parties. It is not as if the Defendant No 1
is required to meet a new claim and thus it cannot be accepted that the
amendment takes away a valuable right accrued to the Defendant No 1
of its status of being a trust not being subject to adjudication.
21. A time barred claim, ordinarily, cannot be permitted to be
introduced by way of amendment, however, this it not an absolute
principle and the Court has the discretion to permit introduction of time
barred claim in order to do complete justice. Where however, the
amendment results in changing the character of the suit so as to set up
an entirely new case alien to the case initially set upon the plaint, the
amendment cannot be allowed. In the present case, by way of
amendment, the relief of declaration of status of Defendant No 1 is
sought which is predicated on facts already pleaded in the plaint.
22. It also needs to be noted that the amendment is pre-trial
amendment which requires a liberal approach. The Defendant No 1
would have the chance to meet the case during trial. The equities can be
balanced by directing that the amendment will not relate to the date of
FA-1807-2025(final).doc
filing of the suit and appropriate issue of limitation be framed and
decided. As such, where the issue of jurisdiction will involve
consideration of status of Defendant No 1, the amendment will not
cause irreparable prejudice to the Defendant No 1. In my view, the
amendment being necessary to effectively adjudicate the main issue in
controversy between the parties cannot be rejected on the ground of
limitation. Point No (ii) is answered accordingly.
23. The decisions relied upon by Mr. Mucchala were rendered
in the context of Section 23 of the Limitation Act, 1963 dealing with
continuous cause of action, which has not been argued by Mr.
Gorwadkar.
24. Resultantly, the First Appeal succeeds. The order of the
Tribunal dated 17th January, 2025 is hereby quashed and set aside. The
amendment application below Exhibit 90 is allowed with the direction
that that the amendment will not relate back to the date of the filing of
the suit and appropriate issue of limitation shall be framed and decided
by the Tribunal.
(SHARMILA U. DESHMUKH, J.)
