1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2445 OF 2009 Evergreen Co-oprative Housing Society Ltd. ...Petitioner vs. M/s.Evergreen Enterprises & ors. ...Respondents Mr.Anil C.Singh i/b Mr.D.R.Shah for the petitioner Mr.K.D.Jha for respondent no.1 Mr.G.M.Ashafaq for respondent no.2 Mr.H.N.Thakore with Mr.Sameer Khedekar i/b M/s.Thakore Jariwala for respondent no.3 CORAM :A.S.OKA,J. DATE : SEPTEMBER 7, 2009 P.C. 1 The submissions of the learned counsel for the parties were heard on the earlier dates. On 24 th July 2009 this court directed final disposal of the petition. The challenge in this petition under Article 227 of the Constitution of India is to the order dated 19 th December 2008 passed by the trial court on an application at Exh. 17 which is the chamber summons taken out by the petitioners-original plaintiffs for amendment of the plaint. 2 With a view to appreciate the submissions made by the learned counsel for the parties, it will be necessary to briefly refer to the facts of the case. The first petitioner claims to be a society registered under the Maharashtra Co-operative Societies Act,1960. The first 2 respondent (first defendant) is a developer. The 2 nd to 5 th petitioners (2 nd to 5 th plaintiffs) are claiming to be the purchasers of the flats in the building constructed by the first respondent. The petitioners claim that 2 nd and 3 rd respondents (2 nd and 3 rd defendants) are occupants/flat purchasers of the respective flats from the first respondent developer. The allegation is that the 2 nd and 3 rd respondents have refused to join the first petitioner-society. The substantive prayer in the suit is for mandatory injunction directing the first respondent to transfer the leasehold rights in respect of the suit property subject matter of the suit on which a building has been constructed. A prayer is for direction against the first respondent to convey the building along with common terrace in favour of the first petitioner-society. There are other prayers made such as direction to hand over possession of the flats to Maharashtra Housing and Area Development Authority/ Mumbai Municipal Corporation in terms of sanctioned plan and to obtain occupation and completion certificate. It prayed that the maintenance charges, outgoings and taxes be collected from the 2 nd and 3rd respondents by the 1 st respondent and the same shall be paid over to the 1 st petitioner. There are specific prayers made as against the 2 nd and 3rd respondents. The prayer made against 2 nd and 3 rd respondents was for directing them to pay arrears of maintenance charges, outgoings and taxes in respect 3 of the flats occupied by them and directing the said respondents to furnish copies of the agreements entered into in their favour by the first respondent. A direction was sought against the 3 rd respondent enjoining him to remove the bridge type access constructed by him for reaching the terrace. Certain other directions were sought against the 3 rd respondent. 3 The suit is being contested by the respondents. The reliance has been placed on alleged agreements executed by first respondent in favour of the flat purchasers. The chamber summons on which the impugned order has been passed was filed by the petitioners praying for amendment of the plaint as per the schedule annexed to the chamber summons. A prayer was made for deleting the prayer clause b(i) from the plaint with a liberty to the petitioner to take appropriate action independently. The chamber summons was opposed by the respondents. It was pointed out by the first respondent that an order was passed by the trial court on 26 th September 2008 by which the petitioners were directed to pay the court fees on the amount of Rs.75,00,000/-. It was contended that after the said order was passed by the trial court, the petitioners cannot be permitted to amend the prayer clause which will defeat the said order. The chamber summons was also opposed by the 2 nd and 3 rd respondents. 4 4 While rejecting the chamber summons, the trial court referred to its earlier order dated 26 th September 2008 directing the petitioners to pay court fees on a sum of Rs.7,03,436/- within 7 days. The learned trial Judge observed that if the claim of maintenance charges remains as it is after registration of the suit, the same results in ousting the pecuniary jurisdiction of the court. The learned Judge observed that the intention of the petitioners in taking out the chamber summons was to avoid payment of court fees and to retain the jurisdiction of the City Civil Court to try the suit. The court observed that in view of the earlier order dated 26 th September 2008, the respondents-defendants have accrued the right to contest the suit on the ground that the trial court has no jurisdiction to entertain the suit. The court observed that if prayer to delete the said prayer clause is granted, the provisions of Rule 2 Order II of the Code of Civil Procedure, 1908 will come in his way which bars his remedy to sue to claim. 5 During the course of hearing before this court, the learned counsel for the petitioners has tendered an affidavit of the Secretary of the first petitioner praying that apart from deleting prayer clause b (i), the petitioners seek to delete certain part of paragraph 21,clause (i) of paragraph 27 and paragraph 31 and a part of paragraph 37. The portions of paragraphs 21 and 5 37 to be deleted are set out in the said affidavit. The resolution passed by the Managing Committee of the first petitioner in that behalf has been placed on record. The learned counsel for the petitioner submitted that if the petitioners had paid court fees on the sum of Rs. 7,03,436/- as directed by the trial court, on deletion of prayer clause b(i) the petitioners will be entitled to 2/3 rd refund. He submitted that the petitioners are ready and willing to pay 1/3 rd of the court fees payable on the sum of Rs.7,03,436/-. 6 The learned counsel for the 1 st and 3 rd respondents have made common a submission that the amendment cannot be permitted which will completely defeat the contention which is available to the respondents that the City Civil Court has no pecuniary jurisdiction to try the suit. The learned counsel for the second respondent as well as third respondent submitted that the petitioners cannot be permitted to delete the prayer clause b (i) with liberty to file the appropriate proceedings for recovering the amounts from the 2 nd and 3 rd respondent. They pointed out that even if the court permits to the petitioners carry out the amendment in terms of the affidavit tendered by the petitioners, there are certain other averments against the respondent nos.2 and 3 and the said averments will remain on record and the said averments will continue to be part of the plaint. The learned 6 counsel pointed out that the certain other portions of the plaint contain the averments against the respondent nos.2 and 3 which will have to be deleted. It was submitted that whole attempt of the petitioners is to frustrate the earlier order dated 26 th September 2008 passed by the trial court and an attempt is to avoid payment of court fees on the basis of the said order which has attained finality. It is, therefore, submitted that no interference is called for with the impugned order and the petition deserves to be rejected. 7 I have considered the submissions. The petitioners desire to delete a prayer clause and certain paragraphs of the plaint. The order dated 26 th September 2008 passed by the trial court will not come in the way of the petitioners in doing so. The petitioners are plaintiffs and a plaintiff is a dominus litus. If as a result of deletion of a prayer, the trial court retains jurisdiction, the respondents cannot suffer any prejudice. However, the petitioners cannot avoid payment of court fees which was payable on the plaint on the date of institution of the suit. The petitioners desire to delete prayer clause b(i) with liberty to file appropriate proceedings. The said relief can be granted in favour of the petitioners. If the petitioners file appropriate proceedings for the same relief, it will be open for the respondents to contest the same on all 7 permissible grounds including the bar of limitation. 8 The learned counsel for the respondents have objected to amendment by contending the deletion of certain other paragraphs of the plaint dealing with 2 nd and 3 rd respondents is required. It is the choice of the petitioners to delete certain paragraphs in the plaint. The plaintiffs/petitioners take the consequences of the deletion as the deletion is at their risk. The concerned respondents can always raise appropriate contentions on that behalf. 9 The learned counsel for the petitioners submitted that if the petitioner had paid the court fees as directed by the trial court under order dated 26 th September 2008, as a result of deletion of prayer b(i), the petitioners would have been entitled to refund of 2/3 rd of the court fees payable on prayer clause b (i). The learned counsel for the petitioners stated that the petitioners are ready and willing to deposit the court fees payable after deducting the amount to which they are entitled to by way of refund. The learned counsel for the petitioners has submitted the calculations in this behalf. The submission of the learned counsel for the respondents is that the petitioners will have to pay the court fees as directed by the trial court and thereafter will have to seek appropriate refund. 8 Interests of justice will be served if the trial court is directed to compute the amount of court fees payable under the order dated 26 th September 2009 and is also directed to compute the refund payable to the petitioners as a consequence of deletion of prayer b(i). The balance amount will have to be deposited or paid by the petitioners by way of court fees within eight weeks from the date of adjuration made by the trial court. The suit cannot proceed unless the balance amount of court fees is deposited by the petitioners. 11 Hence, I pass the following order : i) The affidavit dated 18 th August 2009 of Shri Gilbert Santhumayor, Secretary of the petitioner is taken on record and marked `X for identification. ii)The petitioners are permitted to delete the prayer b (i) from the plaint with liberty to file appropriate proceedings for the recovery of the amount specified in the said prayer. It is, however, clarified that all defences to any such proceedings filed by the petitioner are expressly kept open. iii)The petitioners are permitted to delete the paragraph 31 of the plaint as well as clause (i) of paragraph 27 of the plaint. The petitioners are also permitted to delete those parts of paragraph 21 and 9 paragraph 37 of the plaint which are set out in the said affidavit dated 18 th August 2009. iv)Amendment shall be carried out within a period of three weeks from the date on which the writ of this order is received by the trial court. v) It is clarified that the order passed by the trial court on 26 th September 2009 sill stand. The trial court will calculate the amount of court fees payable in terms of the said order and will also calculate the refund amount payable as per the rules as a consequence of deletion of prayer b (i). vi)The petitioners will be liable to pay balance amount by way of court fees within a period of eight weeks from the date on which computation of the amount is made by the trial court by passing an order. vii)If the petitioners fail to pay the amount within eight weeks as stated above, the plaint will stand rejected under Rule 11 of Order VII of the Code of Civil Procedure,1908. viii)All contentions of the parties on merits of the suit are kept open. ix)Writ Petition is disposed of in above terms. JUDGE