1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS SUMMONS SUMMONS NO.207 OF 2006 NO.207 OF 2006 NO.207 OF 2006 inin in SUIT SUIT SUIT NO.1426 NO.1426 NO.1426 OF 1996 OF 1996 OF 1996 1 (a) (a) (a) Shri Shankar Mangla Ladkya Shri Shankar Mangla Ladkya Shri Shankar Mangla Ladkya Ghatal Ghatal Ghatal & ors & ors & ors ...... Plaintiff Plaintiff Plaintiff vs vs vs 1.1.1. The National & Grindlays Bank The National & Grindlays Bank The National & Grindlays Bank Ltd Ltd Ltd & ors & ors & ors ...... Defendants Defendants Defendants Mr.D.H.Mehta Mr.D.H.Mehta Mr.D.H.Mehta i/bMr.S.U.Pandey for Plaintiff i/bMr.S.U.Pandey for Plaintiff i/bMr.S.U.Pandey for Plaintiff Ms.Deepali Ms.Deepali Ms.Deepali Bhalekar Bhalekar Bhalekar i/bBilawala & Co for Deft no.1 i/bBilawala & Co for Deft no.1 i/bBilawala & Co for Deft no.1 Mr.P.N.Mody Mr.P.N.Mody Mr.P.N.Mody i/b Mr.S.B.Amin for Deft no.2 i/b Mr.S.B.Amin for Deft no.2 i/b Mr.S.B.Amin for Deft no.2 Mr.N.Pandit Mr.N.Pandit Mr.N.Pandit for for for Deft no.3 Deft no.3 Deft no.3 CORAM CORAM CORAM : : : A.S.OKA, A.S.OKA, A.S.OKA, J J J DATED DATED DATED : : : 10th 10th 10th September, 2007 September, 2007 September, 2007 P.C. P.C. P.C. 1.1.1. I have heard the submissions of the learned I have heard the submissions of the learned I have heard the submissions of the learned counsel counsel counsel appearing for the parties on Friday 7th appearing for the parties on Friday 7th appearing for the parties on Friday 7th September, September, September, 2007. 2007. 2007. 2.2.2. The present Chamber Summons is taken out by the The present Chamber Summons is taken out by the The present Chamber Summons is taken out by the plaintiffs plaintiffs plaintiffs for amendment of the plaint. The suit for amendment of the plaint. The suit for amendment of the plaint. The suit has has has been filed by the plaintiffs for various been filed by the plaintiffs for various been filed by the plaintiffs for various reliefs. reliefs. reliefs. The first prayer in the suit is that the The first prayer in the suit is that the The first prayer in the suit is that the consent consent consent decree dated 15th January, 1970 in Suit No. decree dated 15th January, 1970 in Suit No. decree dated 15th January, 1970 in Suit No. 54 54 54 of 1967 is null and void and is not binding on of 1967 is null and void and is not binding on of 1967 is null and void and is not binding on the the the plaintiffs. The second prayer is for a plaintiffs. The second prayer is for a plaintiffs. The second prayer is for a declaration declaration declaration that the plaintiffs are the owners and that the plaintiffs are the owners and that the plaintiffs are the owners and are are are entitled to possession, use and enjoyment to entitled to possession, use and enjoyment to entitled to possession, use and enjoyment to the the the exclusion of the defendants of the suit exclusion of the defendants of the suit exclusion of the defendants of the suit property property property more particularly described in Exhibit A more particularly described in Exhibit A more particularly described in Exhibit A toto to the plaint. The plaintiffs have also prayed the plaint. The plaintiffs have also prayed the plaint. The plaintiffs have also prayed that that that the the the consent decree dated 15th January, 1970 be consent decree dated 15th January, 1970 be consent decree dated 15th January, 1970 be cancelled cancelled cancelled and and and defendants be ordered and directed to defendants be ordered and directed to defendants be ordered and directed to 2 forthwith forthwith forthwith restore restore restore the status quo ante in respect of the status quo ante in respect of the status quo ante in respect of the the the right, title and interest of the plaintiffs in right, title and interest of the plaintiffs in right, title and interest of the plaintiffs in respect respect respect of the suit properties. A prayer for of the suit properties. A prayer for of the suit properties. A prayer for perpetual perpetual perpetual injunction is also made along with a injunction is also made along with a injunction is also made along with a prayer prayer prayer for mandatory injunction directing the for mandatory injunction directing the for mandatory injunction directing the defendant defendant defendant nos. 3 and 4 to forthwith restore the nos. 3 and 4 to forthwith restore the nos. 3 and 4 to forthwith restore the structures structures structures on the suit properties. There is a on the suit properties. There is a on the suit properties. There is a prayer prayer prayer for a decree of damages in the sum of for a decree of damages in the sum of for a decree of damages in the sum of Rs.50,00,000/-. Rs.50,00,000/-. Rs.50,00,000/-. 3.3.3. According to the case of the plaintiffs, the According to the case of the plaintiffs, the According to the case of the plaintiffs, the original original original plaintiff belonged to a tribal community plaintiff belonged to a tribal community plaintiff belonged to a tribal community and and and was the owner of the suit properties. was the owner of the suit properties. was the owner of the suit properties. According According According to them, the original plaintiff was the to them, the original plaintiff was the to them, the original plaintiff was the owner owner owner and was otherwise well and sufficiently and was otherwise well and sufficiently and was otherwise well and sufficiently entitled entitled entitled to to to the suit properties. The suit property the suit properties. The suit property the suit properties. The suit property isisis a land bearing Survey No.234, 239 Part, 228 and a land bearing Survey No.234, 239 Part, 228 and a land bearing Survey No.234, 239 Part, 228 and 225 225 225 Part all situate at village Kurar, Taluka Part all situate at village Kurar, Taluka Part all situate at village Kurar, Taluka Borivali Borivali Borivali Bombay Suburban District totally Bombay Suburban District totally Bombay Suburban District totally admeasuring admeasuring admeasuring 8 acres, 25 gunthas and 11 annas. It 8 acres, 25 gunthas and 11 annas. It 8 acres, 25 gunthas and 11 annas. It isisis stated that even father of the original stated that even father of the original stated that even father of the original plaintiff plaintiff plaintiff was was was in possession of the suit lands. The in possession of the suit lands. The in possession of the suit lands. The 1st 1st 1st defendant is a banking company incorporated in defendant is a banking company incorporated in defendant is a banking company incorporated in United United United Kingdom which acted as trustees of the 2nd Kingdom which acted as trustees of the 2nd Kingdom which acted as trustees of the 2nd defendant defendant defendant trust. The 3rd defendant is the trust. The 3rd defendant is the trust. The 3rd defendant is the Conservator Conservator Conservator of Forest and 4th defendant is the of Forest and 4th defendant is the of Forest and 4th defendant is the State State State of of of Maharashtra. Various assertions have been Maharashtra. Various assertions have been Maharashtra. Various assertions have been made made made in the plaint as regards possession and title in the plaint as regards possession and title in the plaint as regards possession and title of of of the plaintiffs. It is stated that the 1st the plaintiffs. It is stated that the 1st the plaintiffs. It is stated that the 1st defendant defendant defendant in its capacity as trustees of the 2nd in its capacity as trustees of the 2nd in its capacity as trustees of the 2nd defendant defendant defendant filed a suit alleging that father of the filed a suit alleging that father of the filed a suit alleging that father of the plaintiff plaintiff plaintiff was employed by the said 2nd defendant was employed by the said 2nd defendant was employed by the said 2nd defendant 3 Trust Trust Trust as as as a watchman and was allowed to use the land a watchman and was allowed to use the land a watchman and was allowed to use the land bearing bearing bearing survey no.234 and that taking advantage of survey no.234 and that taking advantage of survey no.234 and that taking advantage of his his his position as a watchman, he extended his position as a watchman, he extended his position as a watchman, he extended his occupation occupation occupation over over over survey nos. 234, 228, 239 and 225. survey nos. 234, 228, 239 and 225. survey nos. 234, 228, 239 and 225. ItItIt is is is alleged that a consent decree was obtained in alleged that a consent decree was obtained in alleged that a consent decree was obtained in the the the said suit on 15th January, 1970 by playing said suit on 15th January, 1970 by playing said suit on 15th January, 1970 by playing fraud. fraud. fraud. It is contended that father of the original It is contended that father of the original It is contended that father of the original plaintiff plaintiff plaintiff was not served with the writ of summons was not served with the writ of summons was not served with the writ of summons of of of the the the said suit. It is contended that the consent said suit. It is contended that the consent said suit. It is contended that the consent decree decree decree dated 15th January, 1970 is null and void. dated 15th January, 1970 is null and void. dated 15th January, 1970 is null and void. Various Various Various averments have been made in support of the averments have been made in support of the averments have been made in support of the said said said contention. A reference has been made in the contention. A reference has been made in the contention. A reference has been made in the suit suit suit to to to a Writ Petition being Writ Petition No.1465 a Writ Petition being Writ Petition No.1465 a Writ Petition being Writ Petition No.1465 of of of 1975 1975 1975 filed by Nusli Wadia and others against the filed by Nusli Wadia and others against the filed by Nusli Wadia and others against the Conservator Conservator Conservator of of of Forests. Reference has been made to Forests. Reference has been made to Forests. Reference has been made to the the the assertions in the said writ petition. It is assertions in the said writ petition. It is assertions in the said writ petition. It is alleged alleged alleged that on 12th March, 1996 officers of the that on 12th March, 1996 officers of the that on 12th March, 1996 officers of the Forest Forest Forest Department Department Department demolished about 45 structures on demolished about 45 structures on demolished about 45 structures on the the the suit land. It is alleged that the original suit land. It is alleged that the original suit land. It is alleged that the original plaintiff plaintiff plaintiff never authorised any person to hand over never authorised any person to hand over never authorised any person to hand over the the the suit property to the forest department. It is suit property to the forest department. It is suit property to the forest department. It is alleged alleged alleged that the plaintiff himself never handed that the plaintiff himself never handed that the plaintiff himself never handed over over over possession of the suit properties to be forest possession of the suit properties to be forest possession of the suit properties to be forest department. department. department. 4.4.4. By the proposed amendment, the plaintiffs want By the proposed amendment, the plaintiffs want By the proposed amendment, the plaintiffs want toto to rely upon a caste certificate of the father of rely upon a caste certificate of the father of rely upon a caste certificate of the father of the the the original plaintiff and they want to annexe the original plaintiff and they want to annexe the original plaintiff and they want to annexe the same same same to the plaint. The second part of the to the plaint. The second part of the to the plaint. The second part of the amendment amendment amendment relates to proceedings of Misc.Petition relates to proceedings of Misc.Petition relates to proceedings of Misc.Petition No.1465 No.1465 No.1465 of 1975 and orders passed therein. By the of 1975 and orders passed therein. By the of 1975 and orders passed therein. By the amendment, amendment, amendment, the plaintiffs are seeking to refer to the plaintiffs are seeking to refer to the plaintiffs are seeking to refer to 4 and and and rely upon the affidavit filed by the rely upon the affidavit filed by the rely upon the affidavit filed by the Dy.Conservator Dy.Conservator Dy.Conservator of Forests on 14th August, 2001 in of Forests on 14th August, 2001 in of Forests on 14th August, 2001 in S.C.Suit S.C.Suit S.C.Suit No.6293 of 1990 in the City Civil Court. No.6293 of 1990 in the City Civil Court. No.6293 of 1990 in the City Civil Court. According According According to the plaintiff in the said affidavit to the plaintiff in the said affidavit to the plaintiff in the said affidavit there there there is an admission that the original plaintiff is an admission that the original plaintiff is an admission that the original plaintiff was was was in possession of a part of the suit property. in possession of a part of the suit property. in possession of a part of the suit property. The The The plaintiff plaintiff plaintiff wants to rely upon the correspondence wants to rely upon the correspondence wants to rely upon the correspondence made made made during the pendency of the suit. A reliance during the pendency of the suit. A reliance during the pendency of the suit. A reliance isisis also sought to be placed on an order dated 15th also sought to be placed on an order dated 15th also sought to be placed on an order dated 15th April, April, April, 2005 of the Collector of Bombay Suburban 2005 of the Collector of Bombay Suburban 2005 of the Collector of Bombay Suburban District. District. District. A prayer for interim relief is also A prayer for interim relief is also A prayer for interim relief is also sought sought sought to be added by the proposed amendment. to be added by the proposed amendment. to be added by the proposed amendment. 5.5.5. The submission of the learned counsel for the The submission of the learned counsel for the The submission of the learned counsel for the plaintiffs plaintiffs plaintiffs is that the proposed amendment will not is that the proposed amendment will not is that the proposed amendment will not change change change the nature of the suit and the same is the nature of the suit and the same is the nature of the suit and the same is necessary necessary necessary for effectively adjudicating the dispute for effectively adjudicating the dispute for effectively adjudicating the dispute involved involved involved in the suit. The Chamber Summons is in the suit. The Chamber Summons is in the suit. The Chamber Summons is opposed opposed opposed by learned counsel appearing for the 3rd by learned counsel appearing for the 3rd by learned counsel appearing for the 3rd and and and 4th defendants by pointing out that the 4th defendants by pointing out that the 4th defendants by pointing out that the averments averments averments sought sought sought to be added by clauses III and and to be added by clauses III and and to be added by clauses III and and IV IV IV of the text of the amendment will change the of the text of the amendment will change the of the text of the amendment will change the nature nature nature of the suit. The same are the submissions of the suit. The same are the submissions of the suit. The same are the submissions of of of learned counsel appearing for the 1st and 2nd learned counsel appearing for the 1st and 2nd learned counsel appearing for the 1st and 2nd defendants. defendants. defendants. Learned counsel for the 1st and 2nd Learned counsel for the 1st and 2nd Learned counsel for the 1st and 2nd defendants defendants defendants submitted submitted submitted that if the proposed amendment that if the proposed amendment that if the proposed amendment isisis allowed, the plaintiffsmay contend that the allowed, the plaintiffsmay contend that the allowed, the plaintiffsmay contend that the property property property allowed to be retained by the 1st and 2nd allowed to be retained by the 1st and 2nd allowed to be retained by the 1st and 2nd defendant defendant defendant under orders passed in Misc.Petition under orders passed in Misc.Petition under orders passed in Misc.Petition No.1465 No.1465 No.1465 of 1975 should be now be treated as a of 1975 should be now be treated as a of 1975 should be now be treated as a forest forest forest land. land. land. 5 6.6.6. I have carefully considered the submissions. I have carefully considered the submissions. I have carefully considered the submissions. The The The learned counsel for the plaintiffs relied upon learned counsel for the plaintiffs relied upon learned counsel for the plaintiffs relied upon the the the decision of the apex Court in the case of decision of the apex Court in the case of decision of the apex Court in the case of Rajesh Rajesh Rajesh Kumar Aggarwal & ors vs K.K.Modi & ors Kumar Aggarwal & ors vs K.K.Modi & ors Kumar Aggarwal & ors vs K.K.Modi & ors (AIR AIR AIR 2006 2006 2006 Supreme Supreme Supreme Court 1647.) In paragraph 19 and 20 of Court 1647.) In paragraph 19 and 20 of Court 1647.) In paragraph 19 and 20 of the the the said decision, the Apex Court has held as under said decision, the Apex Court has held as under said decision, the Apex Court has held as under : " 19. As discussed above, the real 19. As discussed above, the real 19. As discussed above, the real controversy controversy controversy test is the basic or cardinal test is the basic or cardinal test is the basic or cardinal test test test and it is the primary duty of the Court and it is the primary duty of the Court and it is the primary duty of the Court toto to decide whether such an amendment is decide whether such an amendment is decide whether such an amendment is necessary necessary necessary to decide the real dispute between to decide the real dispute between to decide the real dispute between the the the parties. If it is, the amendment will parties. If it is, the amendment will parties. If it is, the amendment will be be be allowed; if it is not, the amendment allowed; if it is not, the amendment allowed; if it is not, the amendment will will will be refused. On the contrary, the be refused. On the contrary, the be refused. On the contrary, the learned learned learned Judges of the High Court without Judges of the High Court without Judges of the High Court without deciding deciding deciding whether such an amendment is whether such an amendment is whether such an amendment is necessary necessary necessary has expressed certain opinion and has expressed certain opinion and has expressed certain opinion and entered entered entered into a discussion on merits of the into a discussion on merits of the into a discussion on merits of the amendment. amendment. amendment. In cases like this, the Court In cases like this, the Court In cases like this, the Court should should should also take notice of subsequent events also take notice of subsequent events also take notice of subsequent events inin in order to shorten the litigation, to order to shorten the litigation, to order to shorten the litigation, to preserve preserve preserve and safeguard rights of both and safeguard rights of both and safeguard rights of both parties parties parties and to sub-serve the ends of and to sub-serve the ends of and to sub-serve the ends of justice. justice. justice. It is settled by catena of It is settled by catena of It is settled by catena of decision decision decision of this Court that the rule of of this Court that the rule of of this Court that the rule of amendment amendment amendment is essentially a rule of justice, is essentially a rule of justice, is essentially a rule of justice, equity equity equity and good conscience and the power of and good conscience and the power of and good conscience and the power of amendment amendment amendment should be exercised in the larger should be exercised in the larger should be exercised in the larger interest interest interest of doing full and complete justice of doing full and complete justice of doing full and complete justice toto to the parties before the Court. the parties before the Court. the parties before the Court. 20. 20. 20. While considering whether an While considering whether an While considering whether an application application application for amendment should or should for amendment should or should for amendment should or should not not not be be be allowed, the Court should not go into allowed, the Court should not go into allowed, the Court should not go into the the the correctness or falsity of the case in correctness or falsity of the case in correctness or falsity of the case in the the the amendment. Likewise, it should not amendment. Likewise, it should not amendment. Likewise, it should not record record record a finding on the merits of the a finding on the merits of the a finding on the merits of the amendment amendment amendment and the merits of the amendment and the merits of the amendment and the merits of the amendment sought sought sought to be incorporated by way of to be incorporated by way of to be incorporated by way of amendment amendment amendment are not to be adjudged at the are not to be adjudged at the are not to be adjudged at the stage stage stage of allowing the prayer for amendment. of allowing the prayer for amendment. of allowing the prayer for amendment. This This This cardinal principle has not been cardinal principle has not been cardinal principle has not been followed followed followed by the High Court in the instant by the High Court in the instant by the High Court in the instant case. case. case. " " " 7.7.7. Turning to clause I of the Schedule of this Turning to clause I of the Schedule of this Turning to clause I of the Schedule of this Chamber Chamber Chamber Summons, the plaintiffs wants to rely upon Summons, the plaintiffs wants to rely upon Summons, the plaintiffs wants to rely upon the the the caste certificate issued in the name of the caste certificate issued in the name of the caste certificate issued in the name of the father father father of the plaintiffs. The plaintiffs have of the plaintiffs. The plaintiffs have of the plaintiffs. The plaintiffs have 6 already already already pleaded that father of the original pleaded that father of the original pleaded that father of the original plaintiff plaintiff plaintiff was a tribal. Therefore, the plaintiff was a tribal. Therefore, the plaintiff was a tribal. Therefore, the plaintiff can can can always lead evidence by producing the always lead evidence by producing the always lead evidence by