IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2708 OF 2008 IN CHAMBER SUMMONS NO.33 OF 2007 IN S.C.SUIT NO.6775 OF 2000 Ibrahim Pir Bhai Shaikh & Ors. ...Petitioners Versus Babu Miya Ismail Sheikh & Ors. ...Respondents ...... Mr.P.S.Dani i/b Kiran Jain & Co. for Petitioners. Ms.Sindha Shreedharan for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 20, 2009. MARCH 20, 2009. MARCH 20, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Ms.Shreedharan waives notice for Respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the City Civil Court, Bombay dated 30th November 2007 in Chamber Summons No.33 of 2007 in S.C.Suit No.6775/2000. By this order, the Chamber Summons filed by the Petitioners/Defendants for amendment of the written statement has been rejected. The proposed amendments which are pressed by the Petitioners/Defendants amongst the several amendments mentioned is Paragraph 2(a) and 2(d) of the Schedule, reads thus : "2(a) That this suit is liable to be dismissed on the ground of misjoinder and non joinder as the slum Authority is not a party to the suit as the said premises is situated in the slum, and the said area Simla Nagar is declared as a slum in the year 1977 a notification copy hereto marked and annexed as Exhibit "6". Hence the provisions of Slum Rehabilitation Act are applicable. 2(b) That this Hon’ble court has no jurisdiction to entertain this suit as the area situated the suit premises is declared slum area and the ownership would be established by the Slum Rehabilitation Authority only and not by this Hon’ble court as per section 22 of Slum Rehabilitation Act before instituting any : 3 : proceeding in the court the prior permission of Competent Authority is required. Hence this plaint is liable to be rejected under Order 7 rule 11(d) of Civil Procedure Code." 5. The Court below has brushed aside those amendments on the finding that it was not necessary to decide the real controversy between the parties. The claim of the Petitioners/Defendants is that the factum as to declaration of the suit property as slum area will have crucial bearing on the question of jurisdiction of the Court which goes to the root of the matter. The fact that it is declared as slum area is sought to be supported by Government Notification issued in the year 1977 in relation to the suit property. If this is the nature of amendment proposed by the Defendants, it is inappropriate to observe that it is not necessary to answer the real controversy between the parties. That view taken by the Court below deserves to be overturned. That being the basis of the Judgment which is impugned in this Petition, it necessarily follows that the impugned decision will have to be set-aside and instead, Chamber Summons made partly absolute to the extent of allowing the Petitioners/Defendants to amend written statement : 4 : by incorporating Paragraphs 2(a) and 2(b) of the Schedule as aforesaid. 6. In terms of this order, the Petitioners/Defendants may carry out necessary amendment within two weeks from today in the pleadings before the lower Court. This indulgence is shown on condition that the Petitioners shall deposit further sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to be made over to the Respondents as observed in my order dated August 14, 2008. In other words, the Respondents would be entitled to withdraw the entire amount of Rs.25,000/- (Rupees Twenty-five Thousand) deposited by the Petitioners along with interest accrued thereon, if any, towards cost of the present proceedings. The Petitioners to deposit further amount of Rs.10,000/- (Rupees Ten Thousand) within two weeks from today. 7. Petition disposed of on the above terms. A.M.KHANWILKAR, J.