Mashyak Grih.Sahakari San.Maryadit vs Uman Habib Dhuka & Ors

3. The facts of the case are that the plaintiffs are allegedly the members of the appellant – a Co-operative Housing Society (defendant No. 1 in the suit) (in short “the Society”) which had entered into a development agreement in the month of November 2006 with Respondent No. 4 M/s. Universal Builders (in short “the Developer”) in respect of the development of the Society’s property. The plaintiffs challenged the re- development in the Co-operative Court at Mumbai but failed. The Co- operative Appellate Court also refused to grant any relief to them. They thereafter filed a suit in the City Civil Court at Mumbai inter alia challenging amalgamation of plots bearing CTS Nos. 978 and 979 (both owned by the appellant-Society), praying for directions to Municipal Corporation of Greater Mumbai as regards demolition of fully/partially constructed buildings of appellant-Society on the amalgamated plot, seeking injunction restraining the Society and the Developer from utilizing the entire available balance TDR/FSI of the plot and praying for directions that the entire amount received/receivable by the Society by selling its balance FSI/TDR be kept in fixed deposit to be utilized for reconstruction of the existing buildings etc. The plaintiffs also took out Notice of Motion in the suit for getting interim relief seeking that the Society and the Developer be restrained from carrying out any construction over the plot. The Civil Judge vide order dated 4th January, 2011 rejected the Notice of Motion holding that the plaintiffs were aware of all the facts but they did not raise any objection on dispute; they allowed the Society and the Developer to enter into agreement to obtain amalgamation order, IOD and CC and to raise construction; and when the substantial construction had been raised the plaintiffs were seeking relief of restraining the Society and the Developer from raising further construction. It was further held by the City Civil Court that the plaintiffs never raised any objection or protested against the Conveyance Deed dated 8th February, 1989. The matter was carried in appeal before the High Court by filing Appeal from Order (A.O.), but no relief was granted by the High Court and the plaintiffs sought adjournment to seek amendment in the suit. Thereafter, the plaintiffs took out Chamber Summons for amending the plaint thereby seeking to incorporate the relief of declaration of Conveyance Deed dated 8th February, 1989 as illegal, mala fide and bad in law stating that due to oversight and bona fide mistake the relief could not be sought earlier and to add certain other facts which were allegedly not incorporated in the plaint. The said application was opposed by the opposite parties on several grounds including that Order II Rule 2 leave was not obtained and that the decision not to challenge the conveyance at the time of filing suit was in order to get out of clutches of limitation. The Chamber Summons was dismissed by the learned Judge of City Civil Court vide order dated 3rd December, 2011 holding :

27. Thus, considering the facts and circumstances of the case, it appears from record that the facts mentioned in the schedule of Chamber Summons which Plaintiffs want to incorporate in Plaint as well as prayer clause were of the year 1989 and Plaintiffs were within knowledge of the same prior to filing of the suit. However, the Plaintiffs have failed to bring the said facts before the Court. So also Plaintiffs have only challenged amalgamation of Plot No. 978 and 979 in the Suit. So also Plaintiffs were not a party to the conveyance deed nor legal heirs of deceased Jamal Gani. Plaintiffs also failed to show that the proposed amendment is necessary for determining the real question in controversy between parties. So also the Plaintiffs failed to show that inspite of “due diligence” they could not bring the same on record, therefore, they are not entitled for same. Hence they are not entitled to amend the Plaint as prayed. ……… …. Chamber Summons No. 322/11 is hereby dismissed with cost.”

8. For the aforesaid reasons, the appeal is allowed, the impugned order passed by the High Court is set aside and the order passed by the trial court is restored. No order as to costs.