SHEILA D'SOUZA Vs. N.O. KARIA

JUDGEMENT

(1.) THIS revision is not on board for final hearing today. However, with the consent of the learned counsels for both the sides, I have heard this revision finally.

(2.) BY this revision application the petitioner challenges the order dt.8th October, 1997 passed by the City Civil Court, Greater Bombay in Chamber Summons No.1153 of 1997. By that chamber summons, the petitioner was seeking to amend his plaint by joining two individuals by name, Shri N.N.Pujari and Shri R.K.Gupta, Smt. S.N.Pujari and Smt. N.R. Gupta as defendants to the civil suit. The civil suit has been filed by the petitioner seeking an injunction, restraining the defendants Nos.1 and 2, namely, Shri Karia and Smt. Karia from demolishing any part of the plaintiff's premises i.e. the ground floor of plot No.56, Presidency Co-operative Housing Society, J.V.P.D. Scheme, Bombay, consisting of 3 bed rooms all with attached bath rooms, hall, kitchen, servant's quarter and surrounding open garden. An injunction has also been sought, restraining the defendants 1 and 2 from interfering with the possession and enjoyment of the premises of the plaintiff petitioners. The plaintiff in the plaint claimed that he has acquired the premises from one N.N. Pujari, who was previous co-owner of the suit premises along with the defendants and one Shri R.K.Gupta. The petitioner has further avered that the said Pujari had agreed to grant to the petitioner tenancy and exclusive use, occupation and possession of the suit premises on the ground floor, but he failed to do so. Therefore, a civil suit in the Small Causes Court at Bombay i.e. Declaratory Suit No.474 of 1994 was filed and in that suit the consent terms has been filed on 7.5.1994 and the suit has been disposed of in terms of those consent terms. The petitioner claimed that as a result of that consent decree, now he is in possession of the premises as a tenant. The reason for approaching the court for the above referred injunction is given in the plaint that on 7th June 1994, the defendants Nos. 1 and 2 tried to demolish part of the premises in possession of the plaintiff. In the written statement, the defendants Nos. 1 and 2 have stated that the defendants Nos. 1 and 2 along with Mr.Pujari, Mrs. Pujari and Mr.Gupta and Mrs.Gupta are the co-owners of the suit premises situated on plot No.56. It is further stated that there was an agreement entered into between the co-owners of the suit premises on 12.9.1981, wherein it was agreed that the defendants 1 and 2 would be in possession and would retain the entire second floor premises along with the terrace. Similarly, Gupta was to retain the entire first floor of the premises and the garage on the ground floor and Pujari was to retain the entire ground floor premises and the open space on the south side of the building. It is further avered by the defendants 1 and 2 that as the premises in their occupation were not enough for the needs of his family, he approached the co-owners of the building and requested them for permission to construct on the open terrace and for installation of the lift from within their premises in accordance with law. It is further avered that the agreement was reached between the parties on 29th June 1993. In short that agreement was that the defendents 1 and 2 were to raise construction on the terrace and other co-owners were to permit installation of a lift from within their premises. In nutshell, it was the case of the defendants, firstly, that the plaintiff has no right to be in the premises. It was further their case that they desire to demolish a part of the premises for installation of the lift which is pursuant to the agreement between the parties dated 29.6.1993.

(3.) IT is the case of the petitioner that because of the defence that has been raised by the defendants 1 and 2, namely, that they are carrying out demolition of a part of the premises pursuant to the agreement dated 29.6.93 as also their defence that the suit is bad for non-joinder of the necessary parties in as much as the Pujari's and the Gupta's have not been joined as defendants, the proposed defendants are necessary parties to the suit. It is urged that the court was not justified in observing that by the proposed amendment, the plaintiff is trying to introduce new case into the plaint. The learned counsel for the petitioner further urged that the trial court was not justified in observing that because of filing of the suit on the original side of this court, the present suit has become infructuous. The learned counsel further urged that as the proposed amendment does not change either the nature of the suit or the relief claimed therein, the petitioner was entitled to have his amendment allowed.