- 1 - /0 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1345 OF 2009 in SUIT NO.1440 OF 2000 Mr.Vijay M.Kalanjee .. Plaintiff vs Monica Coop Housing Society Ltd & anr.. Defendants .. Mr.Shailesh Shah a/w Ms.Kirtida Chandarana i.b M/s.Humranwala & Co for Plaintiff Mr.Snehal Shah i.b.M/s Vigil Juris for Defendant no.1 CORAM: R.V.MORE,J DATED: November 5, 2009 P.C. 1. Heard learned counsel for the respective parties. 2. The Chamber Summons is taken out by the plaintiff to amend the plaint in terms of the schedule annexed to the Chamber Summons. The plaintiff filed suit for a declaration that the 1st defendant-society is liable to make payment in respect of additional extra ground rent and/or any amount payable to the defendant no.2-Bombay Municipal Corporation prospectively as well as retrospectively. Directions were also claimed against the defendant no.1 to make the above payment to the defendant no.2-Corporation. A permanent injunction was claimed against the defendant no.2 from recovering any additional extra ground rent from the plaintiff. - 2 - 3. The disputed property originally belongs to the defendant no. 2-Corporation. It was given on lease for a period of 99 years to the leasee Sobhani. Subsequently interest in the disputed property was entrusted with the Bank of India in view of the various transactions. In 1972, a sub lease was executed in favour of the predecessors of the plaintiffs by the said Bank of India. In 1979, the plaintiff entered into a development agreement with one Mohta Builders and Associates who constructed 2nd to 9th floors building on a construction standing already and sold out to various persons who formed the defendant no. 1 society. 4. It is the case of the plaintiff that the additional ground rent was to be paid by the defendant no.1, in view of the various clauses in the development agreement between the plaintiff and Mohta Builders and Associates. However,there arose disputes in this regard and therefore, the aforesaid suit was filed. 5. The plaintiff took out Notice of Motion bearing No. 422 of 2001 for interim relief and the learned Single Judge of this Court by an order dated 29th July 2004 directed the defendant no.1 to pay to the defendant no.2- Corporation the amount of additional ground rent including arrears. So far as future dues were concerned, the plaintiff was directed to communicate above order to - 3 - the defendant no.1 society immediately on receiving a demand from the Corporation and the society was thereafter to pay to the Corporation the dues within two weeks from the date of receiving such communication. 6. The learned counsel for the plaintiff submitted that the period of original lease was expired on 13th November, 2005 i.e. during the pendency of the suit. He further submitted that the original leasee had applied to the Bombay Municipal Corporation for renewal of the licence and proceedings in this regard are pending with the Corporation. It was further submitted that in the month of February 2007 the Corporation revised the ground rent and claimed an amount of Rs.9,57,955/- per annum from the plaintiffs. The plaintiffs thereafter, deposited with the defendant no. 2-Corporation an amount of Rs. 25,00,000/- towards ground rent. In view of the above revision, a distinction between ground rent and additional ground rent was done away with by the defendant no.2-Corporation. The plaintiff in the above circumstances took out a Chamber Summons to amend the plaint so as to bring the subsequent events on record. Learned counsel for the plaintiff further submitted that the amendment is being necessitated by the subsequent events, it deserves to be granted in the interest of justice. - 4 - 7. The learned counsel for the defendants per contra opposed the Chamber Summons by filing reply on the ground that the proposed amendment will change the nature of the suit in as much as a distinct cause of action is pleaded in the proposed amendment. He also submitted that the suit is for relief of payment of additional/ extra ground rent however under proposed prayer the plaintiff seek relief for determination of apportionment of ground rent between the plaintiff and the defendant no.1 society. In his submission, this prayer introduces a new case altogether and therefore the amendment cannot be granted. The learned counsel further submitted that the original lease expired in 2005. Therefore the suit itself has become infructuous and no fresh case can be made out. He, lastly submitted that the document which is being introduced by the proposed amendment at Exhibit 2 is executed by the plaintiff in his individual capacity and the suit is filed by the plaintiff as an executor and trustee of late M.K.S. Radia and therefore, this document cannot be introduced by the plaintiff by the proposed amendment. 8. Having heard learned counsel for the respective parties, I find merit in the Chamber summons. It is not disputed that the period of lease has already expired in the month of November, 2005 and the original leasee has applied for renewal to the defendant no. 2-Corporation. - 5 - It is also not a matter in dispute that the ground rent of the disputed property was revised in February 2007 and thereafter the defendant no. 2-Corporation demanded from the plaintiff the revised ground rent at the rate of Rs. 9,57,955/- per annum. Further, there is no dispute that the plaintiff till 2007 has deposited an amount of Rs. 25,00,000/- with the defendant no. 2 Corporation towards ground rent. 9. Under the interim order mentioned above, it was the responsibility of the defendant no. 1 to pay the arrears of additional ground rent and in so far as future additional ground rent was concerned, the plaintiff was obliged to inform the defendant no. 1 and the defendant no. 1 thereafter was to pay additional ground rent. Since the lease period of the original agreement had expired subsequent to passing of the interim order, the plaintiff appears to have deposited Rs.25,00,000/- with the defendant no. 2-Corporation on the basis of revised ground rent. By the proposed amendment, the plaintiff want to bring the aforesaid facts on record. In my view, the amendment is necessitated because of the subsequent events occured during the pendency of the suit. The proposed amendment does not change the nature of the suit. The same is also not contrary to the contentions raised in the original suit. It is now a settled principle that the Court shoud adopt a liberal approach - 6 - in considering an amendment. In these circumstances in my view, the amendment can be granted. 10. The amendment is opposed by the defendant no. 1 as stated above on following four grounds : (i) In the submission of the defendant no.1 the nature of the suit will be changed in as much as a distinct cause of action is introduced. I do not find merit in this submission. I have already recorded a finding that the nature of the suit will not change if the proposed amendment is introduced. The proposed prayer in an amendment is also required to be asked for in view of the revision of the ground rent in the month of February 2007. (ii) The second submission that the suit itself having become infructuous because of the expiry of the original lease period, the present application for amendment is not maintainable is also devoid of substance. The original leasee has already applied for renewal of lease and said proceedings are pending with the corporation. (iii) The third submission is that the suit was filed for depositing the additional ground rent and by the proposed amendment a new prayer is being introduced to determine the apportionment of the ground rent and - 7 - therefore, this amounted to introduction of a new case. I am not impressed by this submission in as much as this prayer was required to be introduced in view of the revision in ground rent in 2007 thereby extinguishing the difference between the additional ground rent and ground rent. (iv) The last submission is that the document which is sought to be introduced by the proposed amendment by the plaintiff is in his individual capacity and the suit is filed by the plaintiff in his capacity as an executor is concerned, the same is also meritless. The defendant no. 1 in this regard is always entitled to oppose that the plaintiff cannot take support of the document at Exhibit 2 since the same is executed by the plaintiff in his individual capacity. While considering an application for amendment, merits of the amendment cannot be considered but, the Court has to only see whether the amendment changes the nature of the suit or introduces a new case. 11. Considering the facts and circumstances of the case, I find that the proposed amendment is consistent with the original case and it does not change the original case and therefore, the same deserves to be allowed. - 8 - 12. Chamber Summons is accordingly allowed and is made absolute in terms of prayer clause (a). Necessary amendment be carried out within a period of four weeks from today. Needless to mention that the defendants are entitled to file additional written statement within the period of four weeks thereafter. At this stage, learned counsel for the plaintiff submitted that the document at page nos. 50 to 53 of the Chamber summons is in Marathi and he may be given liberty to supply translation of this document and annexe it to the plaint. Leave granted for supplying the translation of the said document. Suit to be placed for framing of issues on 29th January, 2010. R.V.More, J - 9 -