- (1.) 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.
(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 : "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. 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 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.";