MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADITversusUSMAN HABIB DHUKA & ORS.

                   [2013] 2 S.C.R. 873


     MASHYAK GRIHNIRMAN SAHAKARI SANSTHA                       A
                   MARYADIT
                             V.
             USMAN HABIB DHUKA & ORS.
             (Civil Appe.al No. 3917 of 2013)
                                                               B
                      APRIL 18, 2013

           [P. SATHASIVAM, M.Y. EQBAL AND
               ARJAN KUMAR SIKRI, JJ.]

    CODE OF CIVIL PROCEDURE, 1908 :                            c
     0. 6, r. 17 read with 0. 2, r. 2 - Amendment of plaint -
Declined by City Civil Court, but permitted by High Court -
Held: The statement that plaintiffs were not aware of
conveyance dead, prima facie, is not correct - Plaintiffs had . 0
come to know of conveyance dead much before filing of suit,
but relief was not sought for in the plaint - There is no ground
for allowing the amendment sought for by plaintiffs which was
not only a belated one but was clearly an after-thought for the
obvious purpose to avert the inevitable consequence - Order
of High Court set aside and that of City Civil Court restored. E

     The appellant Co-operative Housing Society entered
into a development agreement with respondent no.4 -
developer in respect of development of Society's
property. The plaintiffs-respondent nos.1 to 3, claiming       F
themselves to be the members of the appellant- Society
filed a suit in the City Civil Court challenging
amalgamation of two plots owned by the Society and
praying for directions, inter alia, for demolition of the
construction raised on the amalgamated plot. While             G
declining the interim injunction, it was observed that the
plaintiffs never raised any objection to conveyance deed
dated 8.2.1989. The plaintiffs took out Chamber Summary
for amending the plaint and seeking to incorporate the
                            873                                H
    874      SUPREME COURT REPORTS             [2013] 2 S.C.R.


A   relief of declaration of conveyance deed dated 8.2.1989
    as illegal, ma/a fide and bad in law. The City Civil Court
    dismissed the Chamber Summons. However, the High
    Court in writ petition under Art. 227 of the Constitution
    set aside the order of City Civil Court and permitted the
s   plaintiffs to amend the plaint.

          Allowing the appeal, the Court

      HELD: 1.1. The amendment petition reveals that the
  main ground for seeking relief is that the plaintiff-
C respondent Nos.1 to 3 were allegedly not aware of the
  conveyance deed dated 08.02.1989. Indisputably, plaintiff-
  respondent no.1 was the office-bearer of the Society at
  the relevant time and by Resolution taken by the Society
  he was authorized to complete - the transaction.
D Therefore, it is incorrect to allege that the plaintiff.
  respondent No.1 was not aware about the transaction of
  1989. [paras 6 and 7) [879-D; 880-B-C]

       1.2. Moreover, before the institution of the suit in the
E year 2010, the plaintiffs allegedly came to know about the
  Conveyance Deed dated 8.2.1989, some time in the year
  2009, but relief was not sought for in the plaint which was
  filed much later i.e. 14.10.2010. The High Court has not
  considered these undisputed facts and passed the
F impugned order on the general principles of amendment
  as contained in 0.6, r.17 of the Code of Civil Procedure.
  There is no 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
G committed serious error of law in setting aside the order
  passed by the trial court whereby the amendment sought
  for was dismissed. The order of the High Court is set
  aside and that passed by the trial court restored. [paras
  7 and 8) [880-C-F] ·
H
MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADIT 875
            v. USMAN HABIB DHUKA

    CIVIL APPELLATE JURISDICTON : Civil Appeal No.                 A
3917 of 2013.

    From the Judgment & Order dated 14.2.2012 of the High
Court of Bombay in WP No. 130 of 2012.

     Shekhar Naphade, Pallav Shishodia, Shrish Kumar Misra,        B
I.A. Siddiqui, S.P. Bharati, K.D. Jha, Rahul Gupta, Gaurav Jain,
Abha Jain, N.K. Jain, S. Sukumaran, Uday H. Kedar, Anand
Sukumar, Bhupesh Kumar Pathak, Debjyoti Basau, Meera
Mathur for the Appearing parties.
                                                                   c
    The Judgment of the Court was delivered by

     M.Y.EQBAL, J. 1. Leave granted.
     2. This appeal is directed against the order dated 1..m
February, 2012 of the High Court of Judicature at Bombay in D
Writ Petition No. 130 of 2012 whereby the order dated 3rd
December, 2011 passed by the learned Judge of City Civil
Court, Dindoshi, Goregao.n, Mumbai was set aside and the
plaintiffs (respondent Nos. 1 to 3 herein) were permitted to
amend the plaint.                                            E

     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 F
November 2006 with Respondent No. 4 Mis. 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 G
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, H
    876     SUPREME COURT REPORTS                  [2013) 2 S.C.R.


A 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 FSl/TDR be kept
  in fixed deposit to be utilized for reconstruction of the existing
B 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 an{construction
  over the plot. The Civil Judge vide order dated 4th January,
  2011 rejected the Notice of Motion holding that the plaintiffs
c 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
D 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
E 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
F 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
G 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 :

H             "18. Thus, on going through record, prima facie it
MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADIT 877
    \V.'USMAN HABIB DHUKA [M.Y. EQBAL, J.]

   appears that the prop9sed amendment in the schedule of               A
   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 an_d bad in
   law. On the contrary it has come on record that they°do not          B1
   want to challenge the same as same was obtained by
   fraud or misrepresentation. 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             c
   to Chamber Summons nor sought any relief against them.
   It also appears from record that Plaintiffs in their Chamber
   Surnmons 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
                                                                        0
   be contrary to their pleading in the Plaint as well as in A.O.
   Therefore, cannot be accepted.

   )()()(   )()()(                 .   )()()(


            20......... In the present case, I have already held that   E
   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        F
   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         G
   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.

   )()()(   )()()(                     )()()(                           H
    878       SUPREME COURT REPORTS                   [2013) 2 S.C.R.


A                26. In the present case also deed of conveyance was.
          executed in the year 1989 and 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
B         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
c         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
D         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
E         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 14th
G   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
H         considered and the order is made is not in accordance
MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADIT 879
     v. USMAN HABIB DHUKA [M.Y. EQBAL, J.]

    with law. A party must be entitled to aver whatever the         A
    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.
                                                                    B
         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 ..... ."      C

      5. Hence, defendant No. 1-Society (appellant herein} has
filed this appeal by special leave.

     6. We have heard learned counsel appearing for both            0
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 seeking
relief is that the plaintiff-respondent Nos.1 to 3 were allegedly
not aware of the conveyance deed dated 08.02.1989. For              E
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   F
    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            G
    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.             H
    880       SUPREME COURT REPORTS                 [2013L2 S.C.R.

                                    -   .
A          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
8
    amendment petition is not correct. Indisputably, the plaintiff-
    respondent no.1 was the office-bearer of the Society at the
    relevant time and by Resolution taken by the Society
    respondent No.1 was authorized to complete the transaction.

C       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
D 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
E 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
F amendment sought for was 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.
G
    R.P.                                           Appeal allowed.