-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 833 OF 2009 IN SUIT NO. 73 OF 2000 Shree Swami Hathiramji Mutt. ..Plaintiff. Versus Kamlesh Kumar & Anr. ..Defendants. Mr. A. A. Kumbhakoni i/b D. K. Ghaisas for the plaintiff. Mr. S. Naidu i/b S. G. Walam for defendant no.2. Ms. Geeta Shastri for defendant no.1. AND CHAMBER SUMMONS NO. 1117 OF 2009 IN SUIT NO. 73 OF 2000 Shree Swami Hathiramji Mutt. ..Plaintiff. Versus Kamlesh Kumar & Anr. ..Defendants. Versus Urmish M. Udani and Anr. ..Respondents. (Proposed deft. nos. 3 & 4.) Mr. A. A. Kumbhakoni i/b D. K. Ghaisas for the plaintiff. Mr. S. Naidu i/b S. G. Walam for defendant no.2. Ms. Geeta Shastri for defendant no.1. Mr. D. D. Madon, Sr. Advocate a/w Yogesh Dandekar for respondent no.1. Mr. V. P. Sawant i/b Vinay Bhate for respondent no.2. Coram : R. V. MORE, J. Date : February 23, 2010. P. C. : 1. Heard Mr. A. A. Kumbhakoni, learned counsel for the plaintiff, Mr. Naidu, learned counsel for defendant no.2, Ms. Geeta Shastri, learned -: 2 :- counsel for defendant no.1 and Mr. D. D. Madon, learned senior counsel for the proposed defendants. 2. Both the chamber summonses are taken out for amendment in plaint. By Chamber Summons No.883 of 2009 the plaintiff seeks to correct the typographical error that has crept in giving description of the suit property given in plaint. By Chamber Summons No. 1117 of 2009, the plaintiff wants to bring the subsequent events on record, namely that the suit property was transferred by the defendant no.2 in favour of the respondents – proposed defendant nos. 3 & 4, on 24th April 2006 during the pendency of the suit despite injunction restraining him from creating third party rights in the same. 3. The plaintiff – a public trust, filed the above suit for declaration and possession of the suit properties more appropriately described in Exhibit-A annexed to the plaint. At the instance of plaintiff, this Court issued an interim injunction on 2nd of September 2004 restraining the defendants from creating any third rights in the suit properties. This injunction order was confirmed by the Division Bench of this Court on 3rd November 2004 with some modifications. It is the case of the plaintiff that defendant no.2 in breach of the above order transferred some of the suit properties in favour of the proposed defendant nos. 3 & 4 vide a deed of confirmation dated 24th April 2006. Therefore, Chamber Summons No. 1117 of 2009 is taken out to bring these facts on record and also to challenge the transaction between defendant no.2 and proposed defendant nos. 3 & 4. -: 3 :- 4. Both the chamber summonses are opposed by the learned counsel appearing on behalf of defendants and learned counsel appearing on behalf of the proposed defendant nos. 3 & 4 on the following grounds. (i) Firstly, that the deed of confirmation was entered into by the defendants with proposed defendant nos. 3 & 4 in pursuance of the agreement dated 24th March 1999 and therefore the relief in respect of an agreement dated 24th March 1999 would be barred by the law of limitation; (ii) Secondly, that the amendment if allowed, the defendants as well as the proposed defendants will have to face contempt, and (iii) Lastly, that this Court has no jurisdiction to entertain the suit in respect of the property situated beyond the territorial jurisdiction of this Court. 5. It is the specific case of the plaintiff that the suit properties are transferred by defendant no.2 in violation of the injunction granted by this Court on 2nd September 2004. This transaction between defendant no.2 and proposed defendants was entered into on 24th April 2006. It is also specific case of the plaintiff that the agreement dated 24th March 1999 on which the defendants rely is anti-dated and the plaintiff therefore challenges the transaction dated 24th April 2006 entered into between defendant no.2 and proposed defendants. According to the defendants this amendment is barred by the law of limitation. However, it is now settled position of law that amendment can be allowed subject to limitation. However, it is now settled position of law that amendment can be allowed subject to limitation. I am therefore of the view that the amendment -: 4 :- cannot be rejected on the ground that same is barred by law of limitation. So far as the apprehension of the defendants that if the proposed amendment is allowed they will face contempt action is concerned, I am of the opinion that their apprehension can be taken care of by observing that this amendment will come into effect from the date of this order and will not relate back to the date of suit. 6. The third ground on which the amendment is opposed is that this Court has no territorial jurisdiction to deal with amendment. Mr. Naidu, learned counsel for defendant no.2 and Mr. D.D.Madon, learned senior counsel for the proposed defendants in this regard relied Clause 12 of the Letters Patent of the High Court of Judicature at Bombay [for short, “Letters Patent”] and the decision of the Apex Court in the matter of Adcon Electronics Pvt. Ltd v/s. Daulat and another reported in AIR-2001 SC 3712. They also invited my attention to the prayers in the main suit and the prayers which are sought as against the proposed defendant nos. 3 & 4 in the draft of amendments. In Adcon Electronics case (supra) Clause 12 of the Letters Patent fell for consideration of the Apex Court. The Apex Court considered Clause 12 of the Letters Patent and held that under clause 12 the High Court in its ordinary original civil jurisdiction will have power to receive, try and determine (i) the suit for land or other immovable property if such property is situated within the local limits of original jurisdiction of the High Court or (ii) all other cases (a) if the cause of -: 5 :- action has arisen wholly within the local limits of the ordinary original jurisdiction of the High Court, (b) if prior leave of the Court has been obtained and the cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the High Court; or (c) if the defendant dwells or carries on business or personally works for gain within such limits. 7. In Adcon Electronics case (supra) the Apex Court referred to decision of the Federal Court in the matter of M/s. Moolji Jaitha & Co., v/s Khandesh Spinning & Weaving Mills Co. Ltd reported in AIR-1950 wherein the Federal Court defined the expression “suit for land”. The Federal Court held that the expression “suit for land” covers three classes of suits, (i) suits for determination of title to land; (ii) suits for possession of land; and (iii) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land. This decision of the Federal Court is approved by the Apex Court in Adcon Electronics case (supra). 8. Now, let us consider whether the amendment as claimed by the plaintiff can be granted in the light of above decision of the Apex Court in Adcon Electronics case. The suit properties, the description of which the plaintiff by Chamber Summons No. 833 of 2009 desires to correct are situated at Panvel, ie., beyond the local limits of this Court. The plaintiff alleges that these properties are transferred by defendant no.2 in favour of the proposed defendant nos. 3 & 4 in violation of the order passed by this -: 6 :- Court on 2nd September 2004. The proposed prayers, if perused carefully, will reveal that the plaintiff is seeking possession of these properties from the proposed defendant nos. 3 & 4. The plaintiff also seeks to challenge the transaction between defendant no.2 and proposed defendant nos. 3 & 4 which was entered into on 24th April 2006. The main prayer in suit is for possession against defendant nos.1 & 2. If the prayers in the main suit and the prayers which are sought to be introduced by way of amendment are considered then there is no doubt in my mind that the plaintiff’s suit falls within the category of “suit for land”. If the suit is for land situated at Panvel which is obviously beyond the local limits of this Court, such suit cannot lie in this Court. If this Court has no jurisdiction to receive, try and determine the suit then the amendment cannot be granted. In the result, both the chamber summonses are dismissed. 9. It is made clear that the observations made above in this order are prima facie and tentative in nature and made only for the limited purpose of disposing of the aforesaid two chamber summonses. The Court disposing of the suit shall decide the same on its own merits independently without being influenced in any manner by the observations made hereinabove. (R.V. MORE, J.)