1 wp-10404-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10404 OF 2011 Mumbai International Airport Pvt Ltd. ..Petitioner Vs. Edward alias Adward Paul Machado & Ors. ..Respondents Mr. Aspi Chinoy Senior Counsel with Mr. Farid Karachiwala i/b M/s. Wadia Ghandy & Co. for the Petitioner Mr. Y. S. Jahagirdar Senior Counsel with Mr. Bharat Chaudhary and Mr. Anil Singh i.b Dastur Dadhich and Kalambi for the Respondent No.1 Mr. N.M.Daghi i/b M/s. M. V. Kini & Co. for Respondent No.2 CORAM : R M SAVANT, J. DATE : 12th December 2011 P.C. 1 The above Petition takes exception to the Order dated 5-11-2011 passed by the Learned Judge of Bombay City Civil Court, by which Order, the Chamber Summons No.513 of 2011 filed by the Original Plaintiff i.e. the Respondent No. 1 herein came to be allowed and resultantly, the Plaintiff has been allowed to incorporate in the Plaint the amendments which have been sought by the said Application. 2 The Respondent No.1 is the original Plaintiff who has filed S.C. Suit No. 5890 of 2004 inter alia seeking a relief that he should not be dispossessed without due process of law. 3 In the context of the impugned order that has been passed by the Learned Judge of the Bombay City Civil Court, it would be relevant to note the 2 wp-10404-11.sxw averments are made in paragraph 13, 14 and 16 of the plaint which are reproduced herein under: 13. The plaintiff states he continued to be in use, occupation, possession, enjoyment and cultivation of the suit property without any intervention, interference and/or obstruction from the Defendants and/or from any other party including the Authorities or otherwise in any manner whatsoever. 14. The Plaintiff states he is thus in settled possession of the suit property and is entitled to protect the same from the Defendants. The plaintiff states the defendants till date have chosen not to file a Civil Suit and for the reasons best known to them. The Defendants want to propose dumping/filling activities around the suit property. The plaintiff states that he has put up a compound wall around the property in his possession and the same is duly fenced. The Plaintiff states that there is a compound wall common to Hotel Leela Limited on one side and Yellow Fever Hospital is just adjacent and/or touching the suit property and as shown in the yellow shaded colour and bounded by red line on the Plaint at Exhibit-B hereto. The Plaintiff states that the compound wall as put up by him around the suit property in his possession goes to prove that he has complete control over the suit property and that the suit property is in possession of the Plaintiff. 16. Strictly without prejudice to the aforesaid contentions, the plaintiff says and submits that to the knowledge of the Defendants, since he is in uninterrupted, use, occupation, possession, cultivation and enjoyment of the suit property and his possession to the suit property is ripe by way of adverse possession as against the Defendants and he has become the owner thereof. The record discloses that the Plaintiff claimed to be in settled position of about 28.52 acres of land. 4 In the said suit, the Plaintiff filed a Notice of Motion for interim reliefs. It 3 wp-10404-11.sxw appears that a statement was made on behalf of the Airport Authority of India that the Plaintiff’s standing crop was visible on 6 to 7 acres of land out of the suit property. The said Notice of Motion was heard and injunction came to be granted to the Plaintiff by order dated 7-5-2011 only in respect of 7 acres of land. 5 During the pendency of the suit, the Airport Authority of India had granted a lease of 5.85 acres of land to the Petitioner, by Lease Deed dated 26th April 2006 and thereafter the remaining land was granted by another lease deed dated 15th May 2009. The Petitioner in view of the said leases in its favour had moved an application in the Bombay City Civil Court for impleadment in the said suit which came to be rejected. However, on the matter being carried to this Court, the said Application was allowed and the Petitioner came to be impleaded in the said suit as the Defendant No.3. 6 After the Notice of Motion for injunction came to be disposed of on 7th May 2011, the Respondent No.1/plaintiff moved the instant Chamber Summons for amendment of the plaint in terms of the proposed amendments. The amendments sought were on the basis of the events which had taken place after filing of the suit. By the proposed amendments the lease deeds dated 26th April, 2006 and 15th May, 2009 were sought to be challenged as also the plaintiff claimed the relief of possession of the land from which he has allegedly evicted pending the suit and that the said land should be restored to him. The averments to the said effect and the consequential prayers are part of the proposed amendments. One of the prayer sought to be incorporated was 4 wp-10404-11.sxw also a declaration of title by adverse possession. The said application was opposed on behalf of the Petitioner herein by filing a reply. The objections were two fold that the reliefs sought in respect of the declaration as regards the lease deeds in question as also claiming title by adverse possession were barred by limitation and that amendments if allowed would change the nature of the suit. The said Chamber Summons was considered by the Learned Judge and as indicated above by the impugned order dated 5-11-2011 has been allowed. 7 The gist of the reasoning of the Learned Judge as can be seen from the impugned Order was that in so far as, the issue of limitation is concerned, the same can be an issue which can be framed in the suit as regards the added reliefs sought. The Learned Judge held that incorporating the prayers sought by the amendments would not amount to changing the nature of the suit. The Learned Judge was of the view that in view of the well settled position in law, that the merits of the amendments need not be gone into at the stage of considering the application for amendment, allowed the said application. 8 As indicated herein above, it is the said order which is impugned in the present petition. It is contended by the Learned Senior Counsel Mr. Chinoy appearing for the Petitioner that a suit which was originally filed for protecting the possession and for a relief not to be dispossessed without due process of law, has been converted to suit based on title on account of the amendment being allowed in respect of the prayer claiming title by adverse possession. The Learned Senior Counsel would contend that the Trial Court has erred in 5 wp-10404-11.sxw holding that the nature of the suit does not change in the teeth of the fact that a suit for protecting possession has now being converted to a suit based on title. This was the principal thrust of the submissions of the Learned Senior Counsel appearing for the Petitioner, apart from the contention that the reliefs sought by way of amendment, raising challenge to the lease deeds and claiming title by adverse possession is barred by limitation. 9 Per contra, it is submitted by the Learned Senior Counsel Mr. Jahagirdar appearing for the Original Plaintiff i.e. the Respondent No.1 that the foundation was already there in the plaint as regards the claim of adverse possession on account of the averments as contained in the plaint in paragraphs 13, 14 and 16. However, a prayer for claiming title by adverse possession remained to be made. The Learned Senior Counsel would contend that other aspects regarding whether on amendment of the plaint whether the Bombay City Civil Court would have jurisdiction as also the issue of limitation, could be raised and tried at the appropriate stage. 10 Having heard the Learned Senior Counsel for the parties, in my view, no fault can be found with the order passed by the Trial Court. It cannot be said that the Trial Court has erred in exercising jurisdiction by allowing the Chamber Summons for amendment of the plaint. 11 In so far as, the contention of the Learned Senior Counsel appearing for the Petitioners that on the plaint being amended in terms of the proposed amendment, the nature of the suit would change is concerned, in the said context, the averments made in paragraphs 13 and 16 are relevant. The said 6 wp-10404-11.sxw averments unequivocally point out that the Plaintiff claims to be in use, occupation, possession, enjoyment of the possession without any intervention, interference and/or obstruction from the Defendants or from any other parties. Hence, the foundation leading to a claim based on adverse possession was already laid in the plaint. Though the relief sought in the plaint as originally filed was in respect of protecting the possession and not to be dispossessed without due process of law. Hence what is sought to be now incorporated in the plaint is the consequential relief which is based on the said averments. Prima facie therefore by incorporation of the said prayer clause claiming title based on adverse possession in my view would not change the nature of the suit. 12 In so far as, the other amendments are concerned, they are based on the facts and events which had transpired after the suit has been filed. It was therefore necessary for the Plaintiff to bring the said facts on record. Obviously, the said facts could not have been incorporated in the plaint earlier. 13 It is well settled that in so far as, the amendment of pleadings is concerned, a liberal approach has to be adopted as ultimately the Court has to see that the amendments would result in the complete adjudication of the disputes between the parties. In the instant case, since the lease deeds of the year 2006 and 2009 have been executed pending the suit as also it is the case of the Plaintiff that he has been evicted from rest of the land by the Respondents during the pendency of the suit. It was necessary to bring the said facts on record and pray for appropriate reliefs. It is also required to be noted 7 wp-10404-11.sxw that the Defendants, till the Chamber Summons was decided, had not filed their written statements and therefore, they can now file their written statements dealing with the amended plaint. 14 In my view therefore, no fault can be found with the Order of the Trial Court allowing the said Chamber Summons. However, in so far as the challenge to the lease deeds dated 26th April 2006 and 15th May 2009 as also the claim of the Plaintiff based on adverse possession, the issue of limitation would have to be kept open for being agitated before the Court at the appropriate time. So also would be the issue as to whether on amendment of the plaint, the Bombay City Civil Court would continue to have jurisdiction. It would be open for the Petitioner / Defendant No.3 to file appropriate applications in that behalf. 15 In that view of the matter, no case for interference in the writ jurisdiction of this Court is made out. The Writ Petition is accordingly dismissed. 16 At this stage, the Learned Senior Counsel appearing for the Petitioner applies for the status quo which is operating, to be continued for a period of 4 weeks. In my view, the interest of justice would served if the status quo is continued for a period of 4 weeks from date. [R.M.SAVANT, J]