1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 506 OF 2006 IN SUIT NO. 116 OF 2006 Asha Manohar Java and anr. ... Plaintiffs Versus M/s. Siddivinayak Builders and anr. ... Defendants And Milan Desai and Anr. ... Respondents -------- Mr. V.S. Pandey i/b S.U.Pandey Advocate for the plaintiffs. -------- CORAM : A.A. SAYED, J. DATE : 09th JULY, 2009. P.C. 1. By this Chamber Summons, the Plaintiffs are seeking to amend the plaint as per schedule annexed to the Chamber Summons. 2. The suit is filed by the Plaintiffs for possession of an area admeasuring 41.36 sq. ft carpet area which is part of Shop No.9 (new number) which is an adjoining shop to the Shop No.10 (new number) belonging to the Plaintiffs. The case of the Plaintiffs in Chamber Summons is that after filing of ndm chs.506.06.sxw 2 the suit, the Plaintiffs had taken out Notice of Motion No. 225 of 2006, and a reply came to be filed by the Defendant No. 1, who is the builder, wherein it is stated that the Defendant No. 1 has entered into an Agreement for Sale dated 28th June, 2005 with the proposed Defendant Nos. 2 and 3 and sold the said Shop No. 9 admeasuring 70 sq.ft. to them. The grievance of the Plaintiffs is that the Defendant No. 1 had curtailed an area admeasuring 41.36 sq.ft. carpet area, out of his Shop No. 10 and merged into portion of the adjoining Shop No. 9 which is sold by Defendant No. 1 to the proposed Defendant Nos. 2 and 3. The Plaintiffs is also seeking to delete the name of original Defendant No.2 who was wrongly added to the plaint. 3. Having heard learned counsel for the Plaintiffs, I may not inclined to allow the Chamber Summons. The Plaintiffs have taken possession of their Shop No. 10 sometime in the year 2002, however, the suit is filed only in the year 2006. It appears that the suit itself is an afterthought and now the neighbours of the Plaintiffs i.e. proposed Defendant Nos. 2 and 3 are sought to be added as parties to this suit so that part of the area in their occupation can be handed over to the Plaintiffs by the Defendant No. 1 – builder. According to the Plaintiffs, originally 13 shops were to be constructed, however the Defendant No. 1 has illegally constructed 2 additional shops i.e. total 15 shops. The Plaintiffs have not protested in respect of deficit area in the year 2002 when they were given ndm chs.506.06.sxw 3 possession of their shop and the suit is filed after more than three years of taking possession of their shop. It appears that the society is also formed by the occupants of the building. Moreover, the Corporation is not made a party to the proceedings alleging any inaction or illegality on their part in allowing the construction of additional shops beyond what was permissible. Neither it is alleged that the proposed Defendant Nos. 2 and 3 were in collusion with Defendant No. 1. The averment in the plaint is also taken note of that there was a proclamation of sale of the entire building against the Defendant No. 1 in pursuance to a warrant of Attachment dated 07.10.2004. In my view, it is always open to the Plaintiffs to claim damages in respect of the deficit area against the Defendant No. 1 – Builder. 4. The Chamber Summons is rejected. A.A. SAYED, J. ndm chs.506.06.sxw