1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6096 OF 2009 Mangilal Rupchandji Shah ...Petitioner vs. Bombay Municipal Corporation ...Respondent Mr.P.B.Shah for the petitioners Mr.Jaydeep Libra i/b Vinod Sing for respondent nos.2 and 3 Mr.M.M.Malvankar for respondent-B.M.C CORAM :A.S.OKA,J. DATE : JANUARY 15, 2010 P.C. 1 On 13th August 2009 notice for final disposal at admission was issued. By the impugned order, the Chamber Summons taken out by the petitioner-plaintiff for amendment of the plaint was rejected. 2 The suit is filed for declaration that the notice dated 18th August 2005 and the order dated 11th October 2005 passed under section 351 of the Mumbai Municipal Corporation Act,1888 (hereinafter referred to as the said Act) are illegal. A declaration is also claimed as regards the notice dated 3rd October 2005 under section 351 of the said Act. The challenge is also to the notice dated 6th December 2005 under section 488 of the said Act. By the Chamber Summons, the petitioner is seeking to incorporate a challenge to the order dated 29th January 2008 in the pending suit which was passed by the Assistant Commissioner of the 1st respondent on the basis of the notice dated 3rd October 2005 (which is subject matter of challenge in terms of prayer clause (a) of the plaint). The said Chamber Summons was opposed by the 1st respondent-Corporation and by the 2nd and 3rd respondents 2 who are claiming to be landlords of the petitioners. The Chamber Summons has been rejected by passing the impugned order on the ground that the challenge to notice dated 3rd October 2005 could not have been the subject matter of the suit. The learned trial Judge held that one suit challenging two different causes action amounts to mis- joinder of causes of action. 3 The learned counsel for the petitioner submitted that the proposed amendment does not change the nature of the suit and by keeping all defences open, the amendment may be allowed for avoiding multiplicity of the proceedings. The learned counsel for the 1st respondent supported the impugned order. The learned counsel for the 2nd and 3rd respondents opposed the Petition and stated that by granting amendment, the petitioner cannot be allowed to introduce a new cause of action which could not have been introduced in the original suit. He submitted that if such amendment is permitted, now the petitioner will seek interim relief even on the basis of the order dated 29th January 2008 and therefore, the trial Court has rightly rejected the amendment. 4 I have given consideration to the submissions. The averments made in the plaint show that apart from challenging the notice dated 18th August 2005 and order dated 11th October 2005 passed thereon, the petitioner has also sought declaration of illegality as regards the show cause notice dated 3rd October 2005 which is a notice issued by the 1st respondent under section 351 of the said Act. By proposed amendment, the petitioner wants to challenge the order dated 29th January 2008 passed by the Assistant Commissioner of the 1st respondent which is admittedly passed on the basis of the show cause notice dated 3rd October 2005. The said show 3 cause notice is admittedly challenged in the suit. The suit was filed on 9th December 2005 and the order dated 29th January 2008 has been passed during the pendency of the suit. The Chamber Summons has been taken out in June 2008. It cannot be disputed that the said order and show cause notice dated 3rd October 2005 relate to the same property in respect of which earlier show cause notice dated 18th August 2005 has been issued. The Notices which have been challenged the suit relates to the same property. The order dated 29th January 2008 has been passed by the 1st respondent on the basis of the show cause notice dated 3rd October 2005 which already impugned in the suit. Therefore, to avoid multiplicity of the proceedings, amendment ought to have been allowed. Even if the amendment is allowed, the defence of mis- joinder of causes of action will remain open which can be raised by the defendants by filing written statement or additional written statement. 5 Hence, I pass the following order : i) Impugned Judgment and Order dated 10th July 2008 is quashed and set aside. ii)The Chamber Summons No.343 of 2008 is made absolute iii)Amendment shall be carried out within a period of two weeks from the date on which the writ of this order is received by the trial Court. iv)It is made clear that all defences of the respondents including the defence of mis-joinder of cause of action are expressly kept open which can be agitated by the respondents by filing the written statement or additional written statement as the case may be. v) Writ Petition is allowed in above terms. JUDGE