1 WP-7817-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 7817 OF 2010 Essar Enterprises ) a registered partnership firm having ) its ofice at Shop No.2, ambaji Dham ) Building, M.G. Road, Mulund (W), ) Mumbai-80 and aso at A/201, Vinayak ) Ashish, M.M. Malaviya Marg, Mulund (W),) Mumbai 400 080. ).. Petitioner (Org. Deft. No.1) Versus 1. Vinayak Ashish Co-op. Hsg. ) Soc. Ltd. having its Registered ) Office at Plot No.11-B, Madan ) Malaviya Marg, Mulund (W), ) Mumbai 400 080. ) 2. Municipal Corporation of Greater ) Mumbai, having its registered ) office at Mahapalika Marg, ) Mumbai 400 001. ).. Respondents (Resp.No.1 is orig.plaintiff) Mr. Ramakant Paranjape, Advocate, for the petitioner Mr. R.A.Thorat,Advocate for the respondents. CORAM: J.H.BHATIA,J. DATE : 5th October, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for 2 WP-7817-10.sxw the parties. 2. The petitioner, who is original defendant No.1 in L.C. Suit No.2763 of 2008, has constructed "A" & "B" Wings of the Building and sold the flats in the said building to different persons. Flat purchasers and occupants formed a Co- operative Housing Society, which is plaintiff in the suit and respondent No.1 in the present petition. According to them, the plan for construction of "A" and "B" Wings of the building known as "Vinayak Ashish" was sanctioned by the Municipal Corporation on 5.1.2000. As per the sanctioned plan, "A" Wing of the building was to consist of ground + 7 floors, while "B" Wing was to consist of the stilt + complete 6 floors and a part of 7th floor. In the plaint, it was contended that having sold all the flats in the said building, the defendant had no right to make any changes or to make any other construction. He was bound to execute a conveyance deed of the flats and the land in favour of the Society under the provisions of Maharashtra Ownership Flats Act, 1963 (for short, MOFA). However, he sought amendment to the plan which was legally sanctioned. In view of these contentions, in the plaint several prayers were made. Prayer (a) was for declaration that the amended plan is illegal, bad in law and void for want of written consent of the plaintiffs or of its members. Prayer (b) was to seek permanent injunction restraining the defendant No.1 from putting up any 3 WP-7817-10.sxw additional construction. Prayer (c) is for mandatory injunction for demolition of the illegal construction of the 7th floor of "B" Wing and enclosure of stilt portions marked A, B and C in the rough sketch. The defendant No.1 contended that in view of prayer clause (a), as it originally stood, the Civil Court had no jurisdiction. The Notice of Motion taken out by the defendant No.1 was rejected by the trial Court. That order was challenged in Civil Revision Application No. 589 of 2009. After considering the different prayers and the provisions of law, this Court held that the prayer clause (a) was barred by the provisions of Sec. 149 of the of the MRTP Act and therefore this Court directed to delete prayer clause (a) but held that the trial Court will have jurisdiction to proceed with the trial in respect of prayer clauses (b) and (e) and also observed that if the plaintiff/respondent applies for amendment, such application shall be considered in accordance with law by the trial Court. The above order dated 26.11.2009 was clarified by the order dated 14.12.2009 that the trial Court would have jurisdiction to entertain the suit except prayer clause (a). 3. In view of the above order, the plaintiff took out Chamber Summons No.28 of 2010 to amend the plaint and to add para 11A and also sought amendment in the prayer clauses. Prayer clause (a) was sought to be deleted and a new prayer clause (a) and prayer clauses (a-1), (a-II) and (a-III) were sought to 4 WP-7817-10.sxw be added. The proposed prayer clauses read as follows :- "(a) It be declared that for want of Written Consent of the Plaintiff or of its all Members as per provision of Maharashtra Ownership Flats Act, 1963, Defendant No.1 are not entitled to put up any additional construction/Structure on/and around over A and B Wings of the building of the Plaintiffs Society known as "VINAYAK ASHISH", situated at C.T.S. No.551/3, Plot No.11 - B, Madan Mohan Malaviya Marg, Nahur Village, Near Mulund Telephone Exchange, Mulund (W), Mumbai - 80. (a-I) For an order and decree against the defendant N.1 directing them to convey the suit land bearing C.T.S. No.551/3, S. no.94(P) and 119 (P), Plot No.11 - B, Adm. 1295.45 Sq. Mtrs. with building thereon known as "Vinayak Ashish" situated, lying at M.M. Malaviya Marg, Nahur Village, Near Mulund Telephone exchange, Mulund (W), Mumbai - 80 in favour of the Plaintiffs by executing Deed of Conveyance. (a-II) That it be declared by this Hon'ble Court that the construction of one additional room to each flat used as a living room at 7th floor level of "B" Wing of suit building by the Defendant n.1 is without obtaining written consent of 5 WP-7817-10.sxw flat purchasers in suit building and as such the same is illegal and unauthorised being contrary to the provisions of Section 7 of Maharashtra Ownership Flats Act, 1963. (a-III)That by a mandatory order and directions of this Hon'ble Court, the Defendant no.1 and the persons claiming through them be directed to remove and demolish forthwith the said additinoal room to each flat used as a living rooms, constructed by the Defendant No.1 at 7th floor level of "B" Wing of suit building i.e. Vinayak Ashish of Vinayak Ashish C.H.S. Ltd. situated at M.M. Malaviya Marg, Near Telephone exchange, Mulund (W), Mumbai - 80 on Plot No. 11-B, C.T.S. No.551/3 of Nahur Village or in alternate, the Plaintiffs be allowed and permitted to demolish said two rooms initially at the cost and expenses of the Plaintiffs subject to recovery of such costs and expenses from the Defendant No.1" Objection was taken to these amendments. The trial Court, after hearing the parties, allowed the amendment. That order is challenged by the defendant No.1 in the present petition. 4. After hearing lengthy arguments by the learned Counsel, and particularly, the learned Counsel for the petitioner and perusal of the original pleadings, the proposed amendments and the order passed by this Court in the 6 WP-7817-10.sxw earlier petition, it is clear that this Court had held that original prayer clause (a) was beyond jurisdiction of the Civil Court in view of the provisions of Sec. 149 of the MRTP Act because to sanction or not to sanction the plan was the act and authority of the Planning Authority. That could not be challenged before any Civil Court as per the provisions of Sec. 149 and, therefore, the original prayer clause (a), which sought to challenge the legality of the amended sanctioned plan was required to be deleted, but this Court clarified that suit can proceed in respect of the remaining prayers and this Court also clarified that if any application for amendment is made, it can be considered on its own merit. By the proposed amendment, the plaintiff/respondent seeks to plead that the defendant No.1 has failed and neglected to execute conveyance of the suit land and the building in favour of the plaintiff-Society inspite of specific provisions of the MOFA and thus there is no compliance of legal obligations on him. By the proposed prayer clause (a), the plaintiff seeks a declaration that in view of the provisions of MOFA, without the written consent of the plaintiff or of its members, the defendant No.1 is not entitled to put any additional construction/structure on and around A & B Wings of the building. By prayer (a-I), they seek clear direction to the defendant No.1 to execute the deed of conveyance. By proposed prayer clause (a-II), the plaintiff seeks declaration that the construction of one additional room to each flat used as a living room at 7th floor level of "B" Wing without 7 WP-7817-10.sxw written consent of the flat owners is illegal and unauthorised under the provisions of MOFA. By prayer (a-III), the plaintiff seeks direction to the defendant No.1 to demolish that illegal and unauthorised construction. 5. It is settled position of law that amendment in the plaint can be carried out at any stage of the suit or proceeding provided it does not change the nature of suit. On perusal of the original pleadings and the proposed amendments in the pleadings and the prayer clauses, it is impossible to hold that the proposed amendments change the nature of the suit. The objection could be taken only about the original prayer clause (a) and therefore, this Court had directed the plaintiff to delete that prayer. The learned Counsel for the defendant no.1 contended that having deleted prayer clause (a), they could not add another prayer clause (a). We have to look to the contents of the prayer. After looking to the actual prayer made in the proposed prayer clause (a) and other proposed prayers clauses, I find that all these prayers will be within the jurisdiction of the Civil Court and they do not change the nature of suit in any manner. The basic fact remains that the defendant No.1 having constructed the buildings as per the sanctioned plan and having sold all the flats therein, it cannot make any additional construction in the said building, without authority in view of the provisions of MOFA. 8 WP-7817-10.sxw 6. The learned Counsel for the petitioner placed reliance upon Rajkumar Gurawara (dead) through L.Rs. vs. S.K.Sarwagi and Co. Pvt.Ltd. & Anr. AIR 2008 SC 2303. It is not necessary to give facts of that case. In that matter, the Supreme Court held that while granting an application for amendment, the Court has to see as to whether the nature of the suit is changed by making amendment, whether amendment would result in introducing new cause of action and intends to prejudice other party and whether allowing amendment application defeats the law of limitation. The learned Counsel for petitioners contends that in a different suit filed by the original land owner against the present petitioner, wherein the plaintiff-society is also a party, a commissioner was appointed and the Commissioner's report reveals that the additional construction on the 7th floor of "B" Wing was already complete and therefore, this suit to that extent is barred by limitation. This suit was filed in 2008. by prayer clause (e), the plaintiff had sought to demolish illegal construction, which was in progress at that time. According to the plaintiff, that construction was completed pending the suit. Whether that construction was completed before filing the suit or pending the suit can be considered only at the time of trial. As that construction was made, even according to the petitioner, sometime in 2005, while the suit was filed in 2008, again a question will arise whether the suit to that extent is really barred by 9 WP-7817-10.sxw limitation or not. All these questions can be addressed to at the time of trial of the suit and not at the time of deciding whether the amendment application should or should not be allowed. 7. In view of the facts and circumstances, I do not find any illegality or irregularity in the impugned order passed by the trial Court allowing the amendment application. Therefore, the Writ Petition stands dismissed. (J.H.BHATIA,J.)