1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.968 OF 2007 IN SUIT NO.2677 OF 2005 Yevonne John Gonsalves ...Plaintiff Vs. Steven Peter Gonsalves son of Philip Gonsalves & Ors. ...Defendant And Municipal Corporation of Gr. Mumbai & Ors. ...Respondents Mr.P.M.Shah for Plaintiff Ms.Divya Shah for Defendant No.2 Ms.P.K.Shruti with S.Joshi i/b. P.K.Shruti & Co., for Defendants 18,19,24 Mr.P.G.Lad, AGP for Defebdabt Nos. 4 to 7 Mr.D.C. Shah for Defendant No.23 Mr.K.J.Hakani for Defendant No.21 Ms.Meenaxi Iyer i/b. Doijode & Assoc. for Defendant No.2 Mr.C.D.Patel i/b. N.S.Patel for Defendant Nos.3,14 &15 None for Defendant No.1 CORAM: SMT.ROSHAN DALVI, J. DATED: 22ND APRIL, 2008 P.C. 1. The Plaintiff claims to be one of the heirs and legal representatives of one John Gonsalves. As such she 2 essentially claims 20% share in his property and has sought partition of his property. John Gonsalves is stated to have died leaving behind 2 daughters from his first marriage and one daughter from his second marriage. The Plaintiff claims to be the 3rd daughter of the first marriage of John Gonsalves. Defendant No.1 is also stated to be one of his heirs. Consequently the Plaintiff claims 20% in the estate of John Gonsalves. 2. It is the case of the other heirs of the John Gonsalves that the Plaintiff is the fictitious person and not a daughter of John Gonsalves and has made a frivolous claim. They, as the heirs, have sought to enter into various transactions for sale and development of the properties left behind by John Gonsalves. A certain Consent Decree/Consent Terms came to be entered into by them with certain developers in Suit No.1456 of 1985 on 8th April 1994. It is that Consent Decree that the Plaintiff has sought to be declared void and fraudulent. Consequent upon the Consent Decree, Defendant No.23 got certain rights in the properties of John Gonsalves. He created further rights in favour of various developers, all of whom are party Defendants. The Plaintiff along with Defendant No.1 initially filed a Pauper Petition in the year 2002 being Petition No.6 of 2002. Her pauperism 3 was investigated. It is contended that her pauperism was not established. The Plaintiff withdrew the Petition on 23rd March, 2005. In that Pauper Petition leave to file any suit has not been applied for or granted. Nevertheless the Plaintiff filed the present Suit on 6th June 2005 claiming the same reliefs and based upon the same cause of action. 3. The cause of action is stated to have been accrued in 1998 as per her agreement in paragraph 40 of the Pauper Petition. It is contended that the suit filed in 2005 is, therefore, admittedly barred by the law of limitation and in a suit which is barred by the law of limitation no interim relief can be applied for or granted. 4. The Plaintiff also prosecuted various other proceedings against the Defendants on the premise that she was excluded from the estate of her father by practicing a fraud upon her. 5. Revenue Proceedings have been initiated and are in progress in Appeal before certain authorities who are now sought to be main party Defendants. 6. A Writ Petition has been filed by the Plaintiff claiming 4 reliefs against certain authorities who are now sought to be made party Defendants. The Writ Petition has also been allowed to be withdrawn by the order of Division Bench of this Court granting the Plaintiff, a liberty to amend this Plaint. 7. This Chamber Summons is for amendment of the plaint under Order 1 Rule 10 of the C.P.C. The Plaintiff' seeks to join 7 authorities; Municipal as well as the State as party Defendants as proper and necessary parties to the suit. 8. The learned Advocate for Defendant No.2 drew my attention to the merits of the claim showing that the Plaintiff's claim is frivolous. That, of course, is not an inquiry to be made in this application. It is contended on behalf of the other Defendants that if a fresh suit is filed against these parties it will be barred by the law of limitation, and hence, an amendment sought cannot be granted. The Plaintiff' s knowledge of the consent decree entered into by the other heirs of the John Gonsalves with various 3rd parties in respect of the properties left by John Gonsalves is upon the knowledge that she got after the consent terms were executed. The Plaintiff claims that cause of action accrued upon such transaction, that is specifically averred to have 5 accrued in 1998. The Plaintiff filed the Pauper Petition in 2001. It has been registered in 2002. After withdrawal of the Pauper Petition in March 2005, this suit has been filed in June 2005. The time taken by the Plaintiff to prosecute her remedy in an incorrect forum may have to be excluded. That inquiry also would be required to be made in the suit and not in this application. The determination of the issue of limitation raised by each of the Defendants would be tried as preliminary issue under provisions of Order 14 Rule 2 of C.P.C in the Suit based upon the averments in the plaint itself. Merely because the suit is long delayed, without adjudication upon the specific plea of limitation, the application to make other authorities party Defendants should not be denied to the Plaintiff. The order in an application under Order 1 Rule 10 of the C.P.C is a discretionery order. 9. Mr.Shah on behalf of Defendant No.23 drew my attention to the judgments of Supreme Court with regard to the amendment sought by the Plaintiff. In the case of A.K.Gupta and Sons Ltd. Vs. Damodar Valley Corporation, A.I.R . 1967 SC 96, it is held that an amendment which is not by way of addition of new cause of action but an additional approach to the same facts can be 6 allowed. Similarly in the case of T.N.Alloy Foundry Co. Ltd. Vs. T.N.Electricity Board (2004) 3 SCC 392 it has been held that allowing an amendment even if a fresh suit would otherwise be barred by law of limitation would be in the discretion of the Court. 10. It has been argued on behalf of the Respondents that these authorities would be required to act as per the orders of the Court passed consequent upon the Plaintiff' s success in the suit and that those authorities would act whether or not they are made party Defendants. 11. The Plaintiff has challenged the development on the suit property. The development has gone on well prior to the date on which the Plaintiff claims knowledge of the consent decree which she has sought to. Entire property has been developed. The Plaintiff herself has relied upon photographs of buildings constructed upon the suit property in her Pauper Petition. It is, therefore, contended that no legal rights can now accrue to the plaintiff. Grant of equitable relief pending the suit would be completely dependent upon the development and construction over the disputed lands. However, the legal rights of the parties are to be considered at the final hearing of the suit, specially in a suit based on 7 fraud. Fraud, if proved, would set at naught all acts of parties shown to be fraudulent and all consequent actions based upon such fraud. 12. Whether or not the Plaintiff can prove the fraud that she has alleged can be adjudicated upon only in the suit. It cannot be decided at this stage. It is not even an inquiry which the Court is required to make in an application seeking to bring on record other Defendants. It need hardly be stated that the suit, if filed against these parties initially may give those parties the same defence in the suit as would be available to them consequent upon the amendment. The Plaintiff has sought to implead the Municipal Corporation and its Officers. The Plaintiff has contended that plans have been sanctioned upon misstatements which tantamounts to fraud. If that case is proved at the final hearing of the suit specific orders and directions would be required to be passed in respect of the suit properties for the plans which have been passed and consequent entries made. The Municipal authorities would be proper parties and directions can be passed against them. 13. The other set of Respondents, are the State of Maharashtra and its officers. The main challenge of the 8 Plaintiff is to the action of the Urban Land Ceiling Authority with regard to the land which was declared vacant under a notification which is shown to have been issued as far back as in 1981. It is contended on behalf of these Defendants that the suit challenging the notification is hopelessly barred by the law of limitation and that vacant lands have been declared pursuant to the returns filed by John Gonsalves under the Urban Land Ceiling and Regulations Act (ULCRA), which cannot be altered even if the Plaintiff proves the claim in the suit property. That contention may not be correct. The extent of the vacant lands would have to be determined considering each of the family members of the party filing the returns. Hence, if the Court ultimately comes to the conclusion that the Plaintiff and / or Defendant No.1 were the legal representatives of John Gonsalves the extent of vacant lands may be different. 14. It is quite another matter that if the Plaintiff was indeed daughter of John Gonsalves, he would not have concealed that fact in his returns to claim a portion of the land also in her name and which would have resulted in a lesser area of the land being declared vacant. 15. It is contended on behalf of the Plaintiff that if she 9 succeeds in the suit, she would be required to get amended various land records and make various mutation entries for which the authorities are made party Respondents so that directions can be passed against them. It is of course true, as contended on behalf of the Respondents that any order in this suit would oblige the Government authorities to amend the revenue records. Nevertheless a suit filed impleading the Government authorities as a party Defendants does not suffer from the vice of the misjoinder. 16. It may hardly be mentioned that the Defendants such as the Respondents are merely formal parties and would abide by the orders passed by the Court. They need not even file their written statements. 17. The only question open to the Court is whether to exercise the discretion to make them party Defendants as proper parties or not. The suit is in respect of immovable property. The immovable property has been developed. Various 3rd party rights have been created. Various Government records have been made, altered and kept in the normal course. Direction would certainly be required to be passed if the Plaintiff succeeds in the suit, in respect of the Government and Municipal Records. Hence, the Plaintiff' s 10 application to make them party Respondents is not misconceived. The Respondents, as Defendants on record would enable the Court to more conveniently dispose of the suit and pass directions as required. 18. Consequently the Chamber Summons is made absolute in terms of prayers (a) and (b). 19. The Plaintiff shall amend the plaint within 2 weeks. The Plaintiff shall also amend the copies of the plaint served upon the Defendants within 2 weeks. 20. The Plaintiff shall serve copies of the amended plaint upon the Respondents. 21. All the Defendants and Respondents who have appeared in this Chamber Summons waive service. 22. Suit is adjourned to 11th June 2008. (SMT. ROSHAN DALVI, J.)