MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADIT versus USMAN HABIB DHUKA & ORS.

Citation: [2013] 2 S.C.R. 873 · Decided: 18-04-2013 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2013] 2 S.C.R. 873 
MASHYAK GRIHNIRMAN SAHAKARI SANSTHA 
MARYADIT 
V. 
USMAN HABIB DHUKA & ORS. 
(Civil Appe.al No. 3917 of 2013) 
APRIL 18, 2013 
[P. SATHASIVAM, M.Y. EQBAL AND 
ARJAN KUMAR SIKRI, JJ.] 
CODE OF CIVIL PROCEDURE, 1908 : 
A 
B 
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. 
The Judgment of the Court was delivered by 
M.Y.EQBAL, J. 1. Leave granted. 
c 
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 alleged
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