1 ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 797 OF 2009 IN SUIT NO. 1450 OF 1999 Mahendrakumar Chatrabhuj Sanghavi & Ors. ...Plaintiffs. Vs. M/s. S.P. Builders & Ors. ...Defendants. Mr. Aliabbas Delhiwala with Mr. H.N. Thakore i/by M/s. Thakore Jariwala & Associates for the Plaintiffs. Mr. K.K. Chauhan for Defendant Nos. 1 and 2. Mr. S.T. Manek for Defendant Nos. 3 and 4. Mr. Y.B. Yadav for Respondent Nos. 4 and 5. CORAM :- ANOOP V. MOHTA, J. DATED :- 1ST JULY, 2009. P.C.- 1. The Plaintiff has taken out this Chamber Summons with basic prayers to grant leave under Order 1 Rule 8 of the Code of Civil Procedure (for short, “CPC”). The undisputed position on record is that Suit No. 1450 of 1999 is pending since 1999. The affidavit in support of the Chamber Summons, shows the reasons for moving this Application. “4. The suit property is known as The Heera Panna property situated at the junction of Bhulabhai Desai Road and Tardeo 2 Road, Haji Ali, Mumbai-400 026. It consists of an area of about 11520 sq. yards equivalent to about 9632 sq. mtrs, more particularly described in schedule at Exh. A to the Plaint in the present suit- And on which plot a building has been constructed consisting of a ground floor shopping Centre with about 141 shops and about 15 appurtenant garages and 80 car parking spaces, And a residential building of about 118 residential flats with about 28 appurtenant garages and 150 car parking spaces on the terrace above the Shopping Centr4e. The said land and building together with all the said car parking spaces, garage and other structures thereon are hereinafter referred to as “the said Property”. 5.1. I say that diverse disputes and litigations, relating to the said property and certain hoarding sites and structures therein (hereafter called “the said sites”), have been going on since the last over 30 years. 5.2. Apart from the above suit, presently, the under-noted suits/ counter-claims and other proceedings relating to the said Heera Panna property are pending, disposal, viz. (i) H.C. Suit No. 119 of 1988: Society Vs. Defendants Nos. 1 and 2 in the above suit (M/s. S.P. Builders & Ors.) for conveyance in favour of the Society and other reliefs. ii) High Court Suit No. 1450 of 1999: (the present Suit) M.C. Sanghvi & Ors. (being the Heera Panna Society Members and the Heera Panna Society) as Plaintiffs Vs. M/s. S.P. Builders, S.P. Seth and M/s Creation, the Company and others as Defendants for possession of the said sites, conveyance and for other reliefs, and High Court Appeal No.14 of 2009 filed by M/s. Creation & Anr. Against an Order dated 30/04/2008 passed by Her Ladyship Mrs. Justice R.S.Dalvi, allowing amendments to be carried out by the Plaintiffs in the Plaint of High Court Suit No. 1450 of 1999. iii) High Court Suit No.3274 of 2004 : M/s. P.R. Advertising Pvt. Ltd. Vs. Vimalaben C. Jain & Ors. (including Heera Panna members and Occupants) relating to possession of the part of Heera Panna property transferred to M/s. P.R. Advertising Pvt. Ltd. By M/s. S.P. Builders under a 3 Registered Deed of Transfer dated 22/06/2000 and for other reliefs. iv) Small Causes Court RAD Suit No. 677/1999: M/s. Creating and M/s. P.R.Advertising Co. Pvt. Ltd. Vs. M/s. S.P. Builders & Ors. (including Heera Panna members and occupants) for a permanent injunction restraining the Defendants from interfering with the Plaintiffs’ access to and possession of the said sites and for other reliefs. v) Small Causes Court, L.D. Suit No. 251 of 2002:- M/s. Creation and M/s. P.R.Advertising Co. Pvt. Ltd. Vs. T.R. Bohra & Ors. Respectively (including Heera Panna members and occupants) for restraining the Defendants from interfering with the Plaintiffs’ possession or obstructing the Plaintiffs’ access to and possession of the said sites and for other reliefs. vi) Small Causes Court, Mumbai Counter Claim No.1 of 2004 in L.D. Suit No. 251/2002: M/s. S.P. Builders Vs M/s Creation & Ors. for a declaration that M/s. S.P. Builders are entitled to display advertisements on the said sites and for other reliefs. Vii) City Civil Court Counter Claim No.11 of 2003 in C.C.C. Suit No. 2344 /2003 : M/s. Creation & Anr. Vs. M/s. S.P. Builders for setting aside an alleged consent Decree dated 23/05/2003 obtained by M/s. S.P. Builders in C.C.C. Suit No. 2344 of 2003, and for other reliefs. Viii) High Court First Appeal No. 955 of 2004 filed by M/s. Creation against the Order dated 31/07/2003 disposing of the said C.C.C. Suit No. 2344 of 2003, under O.15, R. 1 of C.P.C. and, ix) High Court Criminal Appeal No. 1339 of 2003 filed by M/s Creation against the City Civil Court Order dated 31/07/2003 for not taking action u/s. 195(1)(b) of the Indian Penal Code r.w. Sec. 340 of Criminal Procedure Code. 5.4. The said consent Terms (Exh. A hereto) have been approved by a Resolution dated 8/3/2009 of the Managing Committee of the 7th Plaintiff Society, a copy of which Resolution dated 8/3/2009 is annexed hereto and marked as Exh. B. 4 5.5. Hereto annexed and marked as Exh.C is a copy of the Circular Resolution dated 8/3/2009 signed by 96 (out of 118) flat purchaser/ members of the 7th Plaintiff Society.” 2. There is a strong reliance placed on Chairman, Tamil Nadu Housing Board, Madras Vs. T.N. Ganapathy, 1990 (1) S.C.C.608, referring to the scope and purpose of Order 1 Rule 8. The relevant portion is as under: “7. On the question of maintainability of the suit in a representative capacity under Order I, Rule 8 of the Code of Civil Procedure, it has been contended that since the injury complained of is in regard to demand of money and that too by a separate demand against each of the allottees, giving rise to different causes of action, Rule 1 has no application. The learned counsel proceeded to say that it is not known whether each of the allottees in Ashok Nagar had been even served with an additional demand before the suit was filed; and further emphasised that those who had been so served are interested in defeating only the demand individually referable to each of them. Each one of them is not interested in what happens to the others. It is, therefore, suggested that only such of the allottees who have already been served with additional demands are entitled to maintain an action in court, and they also should do it by filing separate suits. We do not find any merit in the argument. The provisions of Order I of Rule 8 have been included in the Code in the Public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar a Full Bench of the Madras High Court observed that on the plain language of Order I Rule 8, the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted. The Court, while considering 5 whether leave under the rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction as the present one.” 3. So far as filing of such application, in Krishnan Vasudevan & Ors. Vs. Shareef & Ors., (2005) 12, S.C.C. 180, the Supreme Court has made it clear that such Application can be filed at any stage. 4. The point is whether, in the facts and circumstances of the present case, such leave is necessary. As admittedly, the dispute between the individual members though commenced, initially disputes/suits are continued and later on as all the members or such persons have formed a Society Plaintiff No. 7 and now, those members as well as the society have filed the present suit for various reliefs. Though averments for Order-1 Rule-8 of CPC made in the Plaint, yet till this application, such leave was never sought earlier for 10 years. Those basic reliefs are for possession, declaration, injunction against the defendants only. 5. It appears that they want to settle the matter by entering into a consent terms between the Plaintiffs and Defendants. At this stage, I am not concerned with those compromise or the averments made therein. 6 However, it is clear that even the members of the society are fully aware of the litigation between the parties. All the members are not involved in this litigation. The individual members whosoever involved, definitely interested to settle the matter. All the members of the society in such type of litigation, just cannot be invited to join and or to participate through the court process as sought to be done in the present case. The parties who are interested in the litigation and/or dispute and who have full knowledge of the litigation can apply and/or intervene and/or join the said litigation. There is no question, in my view, to issue such general notice to the people at large under Order 1 Rule 8 as sought in this case, now. 6. All these disputes are between the members of the parties and or at the most some of the members of the Association. For that, in my view, such provision need Order 1 Rule 8 is not available basically at this stage of the proceedings. 7. Merely because, other members are not participating and/or not responding to the Society’s notice and/or not consenting and/or not participating in this proceedings, in spite of knowledge of this proceedings as well as the consent terms that itself cannot be the reason to invoke such proceedings to give notice to the people at large about this litigation and or proposed compromise. However, the parties/ Members of the society are at liberty to take out appropriate application to join in the litigation and/or participate in any dispute, if they so desires, if they want to settle their 7 individual rights also. 8. Therefore, there is no case made out to grant relief under Order 1 Rule 8 of the C.P.C. So far as the other prayers are concerned, liberty is granted to the Plaintiffs to apply afresh. 9. The Chamber Summons is accordingly disposed of. No costs. (ANOOP V. MOHTA, J.)