IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 156 OF 2009 in SUIT NO. 1005 OF 2005 Brookhill Tower C & D Wing Coop Hsg.Scty Ltd ....Plaintiff Vs Bhagat Erectors & Dev (I) Ltd .Defendant. & Oshiwara Land Development Co Pvt.Ltd & ors. .. Respondents ... Mr Nusrat Shah a/w Ms. Parvin Contractor Sayed Zia i.b Mr.R.S.Mishra for Plaintiff . Mr.R.B.Jain i..b Legal Juris for Defendant Mr.Ashish Kamath i.b. Mahimtura & Co for Respondent no.1 Mr.P.J.Thorat for Respondent no.3 CORAM : R. V. MORE, J. DATE : 18th NOVEMBER, 2009. P.C. 1. Heard learned counsel for the plaintiff, defendant and the respondents. Learned counsel for the plaintiff makes a statement that defendant nos. 2 to 4 are served. 2, By this Chamber Summons, the plaintiff seeks to implead respondent nos. 1 to 4 as defendant nos. 2 to 5. The original prayers in the suit are also sought to be substituted. Rest of the amendment is sought for elaboration of the existing facts. Learned counsel for the plaintiff relied upon the ratio of the decision of the Apex Court in Baldev Singh & ors vs Manohar Singh & anr reported in (2006) 6 Supreme Court cases 498 in this regard. 3. The Chamber summons was opposed by learned counsel for the defendant on the ground that the nature of the suit will be changed if the proposed amendment is granted. Learned counsel for the respondent no.1 also opposes the Chamber summons on the ground that no relief can be asked against the respondent no.1 and as such presence of respondent no.1 for the purpose of determination of issues in question is not necessary. 5. Having heard learned counsel for the respective parties and having gone through the original pleadings as well as the proposed amendment, I find merit in the Chamber summons. At the outset, it must be stated that the defendant has not yet filed written statement in the suit. A perusal of prayer clause (c) of the plaint reveals that the plaintiffs claim conveyance of the property bearing 39A plot admeasuring about 25,967.50 sq.ft. It is the case of the plaintiff that the residential building by name ‘Brookhill Tower’ i.e the plaintiff is developed by the defendant. The commencement certificate is granted and the occupants of the said building have already formed a cooperative society. Since the defendant no.1 has not conveyed land below the building the suit came to be filed. 6. The plaintiff subsequently found that for the purpose of conveyance presence of respondent nos. 1 and 2 are necessary, they being the owner and assignee of the suit property respectively. The respondent no.3 is also a cooperative society like the plaintiff and respondent no.4 has purchased ‘E’ wing of the building developed by the defendant and therefore, their presence is also necessary. The prayers are also required to be substituted claiming conveyance of the land below the building from the defendant and respondent nos. 1 and 2. I have perused rest of the pleadings and in my opinion, the same provides only details in respect of the facts already pleaded. 7. I do not find any substance in the submissions of the defendant that the nature of the suit will be changed by granting of the proposed amendment. I find that the pleadings proposed are not contrary to the original pleadings and in fact the same are consistent with the original pleadings. I also do not find substance in the submission of the learned counsel for the respondent no.1 that presence of the respondent no.1 is not necessary for determination of the facts in issue. The respondent no.1 is the original owner and respondent no.2 is the from respondent no.1. The defendant developed this property. However, the ownership of the land remains with the respondent no.1 and therefore they are necessary parties and in the absence of respondent nos. 1 and 2 no effective relief can be granted to the plaintiffs. 8. Counsel for the respondent no.1 further submits that there is no privity of contract between the plaintiff and the respondent no.1 and secondly in a suit for enforcement of contractual obligations, the respondent no.1 cannot be joined. Both the submissions are devoid of any substance. Regarding the first submission, I have already pointed out that presence of respondent no.1 is necessary to convey the land beneath the building in view of the provisions of the MOFA Act., notwithstanding the fact that there is no contract between the plaintiff and the respondent no.1, the respondent no.1 can be impleaded as a party to the proceedings. Regarding second submission, it is more than settled law that merits of the amendment cannot be gone into. 9. Taking the totality of the facts and circumstances into consideration and especially the ratio of the Apex Court decision rendered in Baldev Singh ‘s case supra, I am of the view that the amendment should be allowed. The defendant no. 1 is at liberty to file additional written statement. The defendant nos. 2 to 5 are also at liberty to file written statement. 10. Chamber summons is accordingly made absolute in terms of prayer clause (a). Necessary amendment be carried out within a period of two weeks from today and thereafter copy of the amended copy be served on the defendant. 11. Needless to mention that the above observations are made for the purpose of disposal of this Chamber summons and I may not be understood to have expressed anything on merits of the case. R.V.More, J