1 mss CHS1529 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1529 OF 2011 IN SUIT NO. 3417 OF 2007 RAVI NAIR .. PLAINTIFF Vs. MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS. .. DEFENDANTS Mr. Sanjay Jain a/w Ms. Manjiri S. Parasnis for the plaintiff Mr. G. W. Mattos, AGP for D-1 Mr. Vaibhav Joglekar a/w S. Uttam i/b M/s. Pardiwala & Co. for D-2 CORAM: S. C. DHARMADHIKARI, J. DATED: 8/11/2011 P.C. This is a chamber summons for amendment of the plaint. 2. Mr. Jain, learned counsel appearing on behalf of the plaintiff in support of this chamber summons submits that this chamber summons has been moved by the plaintiff for amendment so as to clarify and correct certain errors in regard to the description of the property. Further, the plaintiff seeks to introduce the amendment in 2 mss CHS1529 relation to compliance with the requirement of notice under Section 173 of the Maharashtra Housing and Area Development Authority (MHADA) Act, 1976. Further, an amendment to the plaint so as to add present trustees of the defendant No. 2 trust is also included. 3. Therefore, this is nothing but a request to incorporate the statements as per the schedule to this chamber summons, so as to clarify the claim of the plaintiff in the suit and to correct the names of the trustees and the description of the property. By this the cause of action in the suit has not undergone any change. The amendment is necessary to be incorporated for determining the real controversy in the suit. For all these reasons and by keeping open the objection and the ground of limitation, the amendments be granted. 4. The amendments are opposed by the defendants and there is an affidavit filed on behalf of defendant No. 2. It is stated that the application is not bonafide inasmuch as the defendant No. 2 has filed a Chamber Summons No. 406 of 2011 for rejection of the plaint on the ground that the plaintiff has failed to give statutory notice under Section 173 of the MHADA Act before filing the suit, the suit is not filed within the period specified by Section 6 of the Specific Relief Act, 1963 and that the trustees of the 2nd defendant trust have not 3 mss CHS1529 been impleaded as party defendant. Therefore, to overcome the lacunae and in order to take away a valuable defence of the defendant that this chamber summons has been filed belatedly. The attempt, therefore, is clearly malafide and now even the premises or structure is sought to be brought within the sweep of the suit. For all these reasons the chamber summons be dismissed. 5. After perusing the chamber summons and the affidavits on record, so also considering the submissions of parties, I am of the opinion that this chamber summons deserves to be granted. It is not as if all objections and particularly on the ground of limitation, come to an end merely because the amendment is permitted or granted. By keeping open the objection of limitation the chamber summons can be allowed. Accordingly it is clarified that without prejudice to the rights and contentions of the parties and particularly keeping open the objection that the suit claim is barred by limitation this chamber summons is granted. Further I do not see how by merely allowing the plaintiff to incorporate the amendments as per the schedule to the chamber summons that this court has accepted the case of the plaintiff. At the stage of considering the application of amendment the court does not deal with the merits nor concludes the issues on merits. The merits of the amendment are not considered at this 4 mss CHS1529 stage. In such circumstances by merely allowing the chamber summons does not mean that any of the defences or pleas of the defendants are taken away or lost completely. It is for the plaintiff to satisfy the court that he is entitled to the reliefs claimed and while considering his case, the court is obliged to go into the rival contentions and particularly regarding compliance with the statutory provisions of giving prior notice to the statutory authority. In such circumstances even contentions with regard to compliance with Section 173 of the MHADA Act are not concluded because of this order. 6. In these circumstances and when I am satisfied that the proposed amendment does not change the cause of action nor in the application be said to be lacking in bonafides that this chamber summons deserves to be allowed. It also deserves to be allowed because the amendment would assist the court in determining the real dispute and controversy between the parties. The chamber summons is, therefore, made absolute in terms of prayer clause (a). No costs. Amendment be carried out within a period of two weeks from the date of receipt of this order. 7. It is clarified that the chamber summons is granted subject to the bar of limitation being kept open, so also the compliance with the 5 mss CHS1529 statutory provision in question. All contentions in relation thereto of all parties are kept open as well. 8. At this stage Mr. Jain appearing on behalf of the plaintiff submits that pending motion may be allowed to be amended in terms of this order, since the amendments that are permitted include addition of trustees of the 2nd defendant trust as party defendants and incorporating additional pleas in the plaint, interest of justice would be served if the motions are disposed of by reserving liberty to the plaintiff to seek interim relief in terms of the prayers therein after amendments are carried out. To enable the plaintiff to implead the existing trustees the 2nd defendant shall forward the details of their names and addresses within a period of one week from today to the plaintiff’s advocate. 9. Needless to state that if fresh motions are taken out it would be open to the plaintiff to apply for such reliefs interim / ad-interim as are permissible in law. (S. C. DHARMADHIKARI, J.)