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REPORTABLE

   IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NO. 3917 OF 2013        (Arising out of S.L.P. (C) No. 10064 of 2012)

Mashyak Grihnirman Sahakari Sanstha Maryadit   ……Appellant

                       vs.

Usman Habib Dhuka & Ors.                        ….Respondents

J U D G M E N T

M.Y.EQBAL,J  .   

Leave granted.

2. This appeal is directed against the order dated 14th  

February, 2012 of the High Court of Judicature at Bombay in  

Writ Petition No. 130 of 2012 whereby the order dated 3rd  

December, 2011 passed by the learned Judge of City Civil  

Court, Dindoshi, Goregaon, Mumbai was set aside and the  

plaintiffs (respondent Nos. 1 to 3 herein) were permitted to  

amend the plaint.  

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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  

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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  

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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 :

“18. Thus,  on  going  through  record,  prima  facie  it  appears  that  the  proposed  amendment in the schedule of Chamber Summons  was within the knowledge of Plaintiffs at the time  of filing of the Suit.  However, at the time of filing  the suit, they have failed to challenge execution of  conveyance deed dated 8.2.1989, mala  fide and  bad in law.  On the contrary it has come on record  that they do not want to challenge the same as  same was obtained by fraud or misrepresentation.  

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Moreover, Plaintiffs are not party to execution of  said Conveyance deed nor legal heirs of deceased  Jamal Gani.  So also the Plaintiffs have not made  party  to  six  executants  of  the  said  conveyance  deed to Chamber Summons nor sought any relief  against  them.   It  also  appears  from record  that  Plaintiffs  in  their  Chamber  Summons stated that  due  to  oversight  and  inspite  of  “due  diligence”  they could not bring the said facts on record at the  time  of  filing  of  suit.   But  the  said  statement  appears  to  be  contrary  to  their  pleading  in  the  Plaint  as  well  as  in  A.O.   Therefore,  cannot  be  accepted.

xxx xxx xxx    20. ……..  In the present case, I  have  

already  held  that  the  Plaintiffs  were  within  the  knowledge of proposed amendment at the time of  filing  of  the  suit.   But  they  have  failed  to  incorporate  same  in  the  suit.   So  also  Plaintiffs  failed to show that inspite of the “due diligence”  they  could  not  …  relief  against  them.   It  also  appears  from  record  that  Plaintiffs  in  their  chamber  summons  stated  that  due  to  oversight  and  inspite  of  “due  diligence”  they  could  not  incorporate  said  facts  in  the  Plaint.   On  the  contrary record shows that they have omitted to  incorporate the same in the Plaint.  Plaintiffs also  failed  to  show that  the  proposed amendment  is  necessary for the purpose of determining the real  controversy  and  dispute  between  the  parties.  Therefore,  observations  made  in  the  above  authorities  are  not  helpful  to  the  Plaintiffs  in  support of their submission.

xxx xxx xxx

26. In  the  present  case  also  deed  of  conveyance was executed in  the year  1989 and  

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prior  to  1988 Plaintiff  No. 1 is  a  member  of the  society and also was chairman of the society from  1997-2002 and he was aware about execution of  said conveyance deed since 1989.  So also he was  aware about the said facts prior to filing of the suit.  In  spite  of  the  same  he  has  failed  to  seek  declaration. …..

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.”

 4. Aggrieved by the above-quoted order, the plaintiffs  

filed a writ petition under Article 227 of the Constitution of  

India before the High Court.  The High Court vide order dated  

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14th February, 2012 set aside the order dated 3rd December,  

2011 of the City Civil Court permitting the plaintiffs to amend  

the plaint observing :

“3. The basis upon which the opposition is  considered  and  the  order  is  made  is  not  in  accordance with law.  A party must be entitled to  aver whatever the party requires.  The averments  in the plaint would not show whether the case is  truthful or false.  That would be agitated on merits.  That  has  been  agitated  upon  in  the  interim  application as also in the Appeal from Order.

4. It  may  be  clarified  that  amendments  allowed can be defended by the defendants in a  separate  written  statement  if  an  earlier  written  statement  is  filed.   Consequently,  the  impugned  order disallowing the amendments sought by the  plaintiff  and  dismissing  the  Chamber  Summons  with costs required to be revised. …..”

5. Hence, defendant No. 1-Society (appellant herein)  

has filed this appeal by special leave.

6. We have heard learned counsel appearing for both  

sides and have minutely gone through the pleadings of the  

parties and the amendment petition.  From perusal of the  

amendment  petition,  it  reveals  that  the  main  ground  for  

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seeking relief is that the plaintiff-respondent Nos.1 to 3 were  

allegedly  not  aware  of  the  conveyance  deed  dated  

08.02.1989.   For  better  appreciation,  para  32-(b)  of  the  

amendment petition is reproduced hereinbelow :-

“The Plaintiffs  say  that  all  documents  were  applied  under  RTI  and  some  of  the  same  were  received by Plaintiffs on 2.3.2009.  The Plaintiffs  further  say  that  prior  thereto  Plaintiffs  were  unaware of any such Conveyance dated 8.2.1989.  The Plaintiffs further say that for the first time after  going through the certified copies received under  RTI  Act  the  Plaintiffs  came  to  know about  such  manipulation  and  forgery  in  he  registered  Conveyance dated 8.2.1989.  The Plaintiffs further  say that the signature of the deceased Jamal Gani  Khorajia  has  been  got  forged  and  documents  executed  and  registered  and  a  signature  got  manipulated  through  some  fake  persons,  who  must have impersonated deceased Mr. Jamal Gani  Khorajia.  The Plaintiffs say that is the matter of  common sense that when Jamal Gani Khorajia had  expired on 14.8.1984 then how could he execute  the said Conveyance dated 8.2.1989 after 5 years  from the date of his death.”

7. Prima facie the aforesaid statement made in the  

amendment  petition  is  not  correct.   Indisputably,  the  

plaintiff-respondent no.1 was the office-bearer of the Society  

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at the relevant time and by Resolution taken by the Society  

respondent No.1 was authorized to complete the transaction.  

Hence, it is incorrect to allege that the plaintiff-respondent  

No.1  was  not  aware  about  the  transaction  of  1989.  

Moreover, before the institution of the suit in the year 2010,  

the plaintiffs allegedly came to know about the Conveyance  

Deed dated 8th February, 1989, some time in the year 2009,  

but relief  was not sought for in the plaint which was filed  

much later i.e. 14th October, 2010.  The High Court has not  

considered these undisputed facts and passed the impugned  

order on the general principles of amendment as contained  

in Order VI Rule 17 of the Code of Civil Procedure.  Hence we  

do not find any ground for allowing the amendment sought  

for by the plaintiffs which was not only a belated one but was  

clearly an after-thought for the obvious purpose to avert the  

inevitable  consequence.   The  High  Court  has  committed  

serious error of law in setting aside the order passed by the  

trial  court  whereby  the  amendment  sought  for  was  

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dismissed.  The impugned order of the High Court cannot be  

sustained in law.

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.

……………………………J. (P. Sathasivam)

……………………………J. (M.Y. Eqbal)

…………………………….J. (Arjan Kumar Sikri)

New Delhi, April 18, 2013.

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