1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1139 OF 2008 IN SUIT NO. 2094 OF 2006. Sasmita Investments Ltd. : Plaintiff. Versus Appropriate Authority and Anr. : Defendants. Mr.Janak Dwarkadas,Senior Counsel, with Mr.Mahesh Jethmalani & Mr.Zal Andhyarujina, Mr.Raj Panchamatia i/by M/s.Udwadia & Udeshi for the Plaintiff. Mr.M.I. Sethna, Senior Counsel with Mr.R Asokan for the Defendants. CORAM : R.M.SAVANT, J DATED : NOVEMBER 25, 2008 P.C. 1. By the above Chamber Summons, the Applicant seeks the amendment of the Plaint in terms of the Schedule to the Chamber Summons. The Applicant also seeks addition of certain parties as Defendant Nos.3 to 19 in the cause title after Defendant No.2. 2 2. The Applicant is the original Plaintiff, who has filed the above Suit seeking following declaration :- (i) The said order dated 12th September, 2002 of Compulsory Purchase of the said property stands abrogated on and from 31st October, 2002; (ii) on and from 31st October, 2002 all right, title and interest in the said Property, and all rights to the said FSI, stood re-vested in the Mulanis and Om Prakash Navani, respectively; and (iii) On and from 16th May, 2006, the Plaintiff is the absolute owners of the said Property and have the absolute right, title and interest in the said Property including the right to develop, alienate, sell, transfer, create any interest in and in any manner to deal with and dispose of the said Property without any let or hindrance. 3. The above suit is mainly based on the provisions of Section 269UH of the Income Tax Act. The said provisions provides for compulsory acquisition of the property under Chapter XX(C) of the Income Tax Act as was prevailing at the relevant time. The Plaintiff in 3 Para (x) of the Plaint has averred as to how they are in possession of the property in question which was the subject matter of acquisition under the Income Tax Act. The said Para (x) of the Plaint is as under :- “The Plaintiff says that upon the passing of the first Order of compulsory purchase dated 7th September, 1991, the Defendant Nos.1 and 2 had displayed a notice board on the said Property stating that the said Property vested in Defendant No.2 under Section 269UE of the said Act and posted security personnel to guard the said Property. Even after the said Order of compulsory purchase was set aside by this Hon'ble Court vide its Order dated 12th April, 1993, Defendant Nos.1 and 2 did not remove the Board and the security personnel which they are obligated under law and illegally allowed, the board to remain and the security personnel continue to guard on the said Property. Thereafter as the said Property was again by the said compulsory purchased Order dated 29th June 1993 directed to be compulsorily purchased. This Order was also set aside by the order of this Hon'ble Court dated 11th June 2002 4 stated above. Even after this Order was set aside the Defendant Nos.1 and 2 did not remove the Board and the security personnel which they are obligated under law and illegally allowed, the board to remain and the security personnel continue to guard on the said Property. The Plaintiff says that despite the fact that the Order of compulsory purchase dated 12th September, 2002 stood abrogated on and from 31st October, 2002 (consequent to Section 269 UH of the said Act), and the land together with all the rights thereunder including the rights to FSI have consequently re- vested in the Mulanis and Om Prakash Navani respectively, the Defendants have failed to remove their said boards and security personnel. The Plaintiff says that upon such revesting of the Property on Mulanis and Om Prakash Navani, the Defendants were duty bound, to desist from illegally interfering in the enjoyment of the said property by the persons entitled and to remove the Board and security personnel from guardian the said Property forthwith. The Defendants' actions in failing to remove the said Board and the security personnel deployed to guard the said Property amounts to wrongful interference with Plaintiffs ownership possession and enjoyment of the said 5 Property.” 4. The Plaintiff filed Notice of Motion being Notice of Motion No.2340 of 2006 in the above suit inter alia praying for the following reliefs :- A. for a declaration that : (i) The said order dated 12th September, 2002 of Compulsory Purchase of the said property stands abrogated on and from 31st October, 2002; (ii) on and from 31st October, 2002 all right, title and interest in the said Property, and all rights to the said FSI, stood re-vested in the Mulanis and Om Prakash Navani, respectively; and (iii) On and from 16th May, 2006, the Plaintiff is the absolute owners of the said Property and have the absolute right, title and interest in the said Property including the right to develop, alienate, sell, transfer, create any interest in and in any manner to deal with and dispose of the said Property without any let or hindrance. 6 B. for a Perpetual Injunction restraining the Defendants and their servants and agents from in any manner interfering with the Plaintiff's possession and/or its right to develop alienate, sell, transfer, create any interest in and in any manner to deal with and dispose of the said Property. C. for a Mandatory Injunction directing the Defendants and their servants and agents to forthwith remove their board and security personnel on and from the said Property. D. that pending the hearing and final disposal of the Suit this Hon'ble Court be pleased to issue an injunction restraining the Defendants and their servants and agents from in any manner interfering with the Plaintiff's possession and/or its right to develop, alienate, sell, transfer create any interest in and in any manner to deal with and dispose of the said Property. E. that pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to issue a Mandatory Injunction directing the Defendants and their servants and agents to 7 forthwith remove their board and security personnel on and from the said Property. 5. The said Notice of Motion was heard by a learned Single Judge of this Court (A.S.Oka, J) and by an order dated 9th/10th October 2007 the said Notice of Motion was disposed of without granting any reliefs to the Plaintiff. However, the learned Single Judge in the course of considering the reliefs sought for in the said Notice of Motion has recorded a finding that the Defendants were in possession of the property in question pursuant to the order of compulsory acquisition dated 12th September 2002. Thereafter the matter was carried in Appeal by the Plaintiffs by filing Appeal No.61 of 2008. The said Appeal came up before the Division Bench of this Court on 30th July 2008. A statement was made on behalf of the Plaintiff and the Defendants that they do not desire to lead any oral evidence and the suit could be decided on the basis of the pleadings and the documents submitted by the parties. For the said purpose, the learned counsel for the Plaintiff submitted before the Division Bench that the Plaintiff desires to amend the Plaint in a manner which will not necessitate the oral evidence being led. To this the learned 8 counsel for the Defendants submitted that if such an application is made, liberty shall be kept open in favour of the Defendants to oppose the said application. The said Appeal, thereafter, was allowed to be withdrawn. It is pursuant to the submission made before Division Bench, and in view of the findings recorded by the learned Single Judge in the said Notice of Motion, that the instant Chamber Summons for amendment of the Plaint has been filed by the Plaintiff. 6. By the said amendment, prayer clause (B1) praying for possession is sought to be incorporated, which is as under :- “(B1) In the alternative to prayer (B) above, if this Hon'ble Court holds that the Defendants are in actual possession of the said Property, this Hon'ble Court be pleased to issue a mandatory injunction directing the Defendants to forthwith deliver or cause to be delivered possession of the said Property to the Plaintiff”. Though the parties are sought to be added as Defendant Nos.3 to 19, no reliefs are claimed against the said Defendants. 9 7. On behalf of the Defendants Affidavit in Reply has been filed by one Y.B.S.Thakur, Income Tax Officer. 8. I have heard the learned Senior Counsel for the Plaintiff and the Defendants. It is contended by the learned Senior Counsel for the Plaintiff that the said amendment is necessitated, as the consequential relief for possession was not prayed for, in the event this Court comes to the conclusion that the declaration as prayed for is to be granted. The learned Senior Counsel for Plaintiff further submitted that no prejudice would be caused to the Defendants inasmuch as only the consequential relief of possession has been sought to be as otherwise the declaration in respect of the order passed under the Act has already been prayed for in the suit. This is also necessitated in view of the finding recorded by the learned Single Judge in the Notice of Motion at the interlocutory stage. The learned Senior counsel for the Plaintiff relied on certain provisions of Chapter XX(C) of the Income Tax Act in support of his contention that the Plaintiff is entitled to possession on account of non-compliance of the said provisions by the Defendants and, therefore, the amendment to 10 the Plaint is necessitated. He submitted that in the absence of the consequential relief of possession having prayed for, the Plaintiff would be deprived of the said relief even if it succeeds in the above suit. The learned Senior Counsel for the Plaintiff submitted that even alternate pleas can be taken by a Plaintiff . In support of his submission, he relied upon the judgment of the Supreme Court in the matter of G. Nagamma and another v/s. Siromanamma and another reported in (1996) 2 SCC 25, wherein the Supreme Court has held that if the cause of action would not change nor the relief could be materially affected, the amendment has to be allowed. The learned Senior counsel also relied upon the Judgment of the Apex Court reported in (2001) 2 SCC 472 in the matter of Ragu Thilak D John versus S Payappan and others in support of his submission that even a relief which is said to be barred by limitation could still be allowed and the disputed matter made the subject matter of an issue. The learned Senior Counsel lastly submitted that the said amendment is necessary for determining the real question in controversy between the parties in regard to who is in possession of the property. The learned Senior Counsel submitted that the cause of action does not 11 change and no prejudice is caused to the Defendants. 9. On behalf of the Defendants, the said amendment application is opposed by the learned Senior Counsel Shri M.I. Sethna. The learned Senior Counsel for the Defendants contended that if the amendment is allowed, the right of the Defendants, which has accrued on account of the finding recorded by the learned Single Judge in the order passed in the Notice of Motion as regard possession in the Defendants favour, would be prejudiced. He further submitted that a new case is sought to be introduced by the Plaintiff by way of the amendment. The learned Senior Counsel for the Defendants submitted that in view of the bar of the Section 269 UN of the Income Tax Act, the above suit is not maintainable. He submitted that if the amendment is allowed, it would mean that the Plaintiff is allowed to fill in the lacunas of which observation has been made by the learned Single Judge in the order passed in the said Notice of Motion. The learned Senior Counsel further submitted that there is no justification or reason as to why the Plaint as originally filed did not not include the averments which are now sought to be introduced by way 12 of the amendment. The submissions of the learned Senior Counsel for the Defendants were mainly on the merits of the Plaintiff's case introduced by way of the amendment. The learned Senior Counsel for the Defendants relied upon the judgment of the Supreme Court in the matters of Mohan Lal v/s. Anandibai and others reported in AIR 1971 SC 2177 and the Judgment of this Court in the matter Shri Uttam @ Ratnakar v/s. Premanand Fotu Fadte reported in 1997 (2) Bom. C.R. 81, in support of his submission that by way of amendment a new plea is sought to be introduced which is impermissible. 10. Having considered the rival contentions and nature of the amendment sought for, in my view, the Chamber Summons is required to be allowed. As indicated above, the main substantive relief sought for in the suit is as regards the declaration in respect of the order of compulsory acquisition of the property in question on account of abrogation under Chapter XX(C) of the Income Tax Act. By way of amendment what is prayed for is the relief of possession. This is in view of the finding recorded by the learned Single Judge in the order dated 9th & 10th October 2007 in the Notice of Motion. Prayer for the 13 consequential relief would not amount to a new plea being taken, and merely because the amendment is allowed would not in any manner affect any right which has accrued to the Defendants by virtue of the order passed in the Notice of Motion at the interlocutory stage. In my view, the ratio of the Judgments cited on behalf of the Defendants is not applicable in the fact situation of the instant case, as the application for amendment has not been made belatedly. 11. In so far as the legal bar regarding maintainability of the above suit is concerned, only because the amendment is allowed, in my view, it would have no effect on the legal bar if any. In my view, there is no warrant at this stage when the application for amendment is under consideration to consider various provisions of Chapter XX (C) of the Income Tax Act, as the Defendants would be entitled to deal with the amendment in their Written Statement. It is well settled that the Plaintiff is entitled to take alternate pleas. It is also well settled that at the stage of considering the application for amendment, the merits of the case, as contained in the amendment, need not be gone into, as the Defendants would have an opportunity to deal with the 14 averments which are now sought to be introduced. In my view, no prejudice is likely to be caused to the Defendants if the amendment as sought for is allowed as the defences is available to the Defendants would still be available to them. The amendment is also necessary for a complete adjudication of the dispute between the parties. 12. Resultantly, the above Chamber Summons is required to be allowed and is accordingly made absolute in terms of prayer clause (a). Amendment in the Plaint to be carried out within four weeks from date and an amended copy of the Plaint to be served on the Defendants within four weeks thereafter. The Chamber Summons is accordingly disposed of. [R.M.SAVANT, J]