Dismissed

Mirza Mohammed Khalid Dawood and Ors. v. Bhiwandi Nizampura City Municipal Corporation Thr Its Commissioner and Ors.

Bombay HC11 Mar 2022WP/1601/2022

Case brief

AI extract

What is this about?

In a writ petition challenging the rejection of an amendment application in a permanent injunction suit, the High Court held that the amendment was improper as the new relief sought was time-barred. Furthermore, as the suit for a simplicitor injunction was not maintainable, no case for interference was made out.

What did the court decide?

The writ petition challenging the rejection of the amendment prayer is dismissed.

Mirza Mohammed Khalid Dawood and Ors. Vs Bhiwandi… — Property and Title | Bombay HC (2022)

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(24)-WP-1601-22.doc .

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Digitally signed by BALAJI BALAJI GOVINDRAO GOVINDRAO PANCHAL PANCHAL Date: 2022.03.14 12:02:56 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1601 OF 2022

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Shri. Mirza Mohammed Khalid Dawood and Ors. ..Petitioners
Versus
Bhiwandi Nizampura City Municipal
Corporation, Bhiwandi and Ors. ..Respondents

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 ..Respondents

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Mr. Sandesh D. Patil i/by Divya A. Patil-Pawar, for the Petitioners.
Ms. Sucheta D. Ghaisas, for the Respondent No.1.
Mr. Raju D. Suryawanshi, for Respondent No.2.

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CORAM : NITIN W. SAMBRE, J.

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 DATE : 11th MARCH, 2022

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P.C.

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1.On or about November, 2016, a suit for permanent
injunction is initiated by the petitioners against the
respondent/Corporation directing it not to demolish suit structure
and disturb possession of the petitioners/plaintiffs. Immediately to
the said suit, a written statement was tendered by the respondent/
Corporation on or about September, 2016 pointing out that a notice
was already served on petitioners on 20th May, 2016 i.e. before filing
of the suit.

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2. On this basis, petitioners took out application Exh.131
seeking amendment to the plaint which is rejected vide impugned
order dated 10th January, 2022. The submission of Mr. Sandesh Patil

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BGP. 1 o f 3

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(24)-WP-1601-22.doc .

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is, the amendment sought ought to have been granted by the Court
below as the same is necessary for adjudication of the issue in the
suit. According to him, at this stage, Trial Court cannot go into the
issue of maintainability of suit claim and limitation. He draws
support from the judgment of Hon’ble Apex Court in the matter of
Andhra Bank Vs. ABN Amro Bank N. V. and Ors reported in (2007)
6 SCC 167.

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3. Counsel for the respondents would oppose the prayer as
according to her, suit itself is not maintainable.

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4. I have appreciated the submissions.

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5. The suit is for simplicitor injunction, in which the
petitioners intend to incorporate pleading in the plaint so as to
challenge the notice issued by the respondent/Corporation. From
the perusal of rival pleadings, it can be inferred that the said notice
was served on the petitioners/plaintiffs. There is enough material
on record in the form of pleadings that such notice was affixed on
the premises occupied by the petitioners. This fact was brought on
record by way of written statement way back in 2016 and thereafter
till 2021 no steps are taken by the petitioners. Petitioners by way of
afterthought in 2021 have sought amendment to the plaint claiming
that such notice of demolition be declared as illegal and not
binding.

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2 o f 3

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BGP.

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(24)-WP-1601-22.doc .

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6. Limitation for seeking relief of declaration is three years.
Petitioners could have sought relief for declaration at the most by
the end of 2019. However, in 2021, petitioners have sought to
incorporate time barred claim of declaration by way of amendment.
As such, in this background, issue of limitation in this case can’t be
termed as mix question of fact and law.

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7. The judgment relied by the counsel for the petitioners in
the matter of Andhra Bank (cited supra) will be of hardly any
assistance, as this Court is sensitive to the fact that amendment even
at the stage of pre-trial stage can be granted. However, this Court
must be sensitive to the fact that such claims which are sought to be
incorporated by way of amendment should not be time barred. The
Court has every power to look into the issue of limitation at this
stage based on the admitted/undisputed set of facts. That being so,
the Court below was justified in rejecting prayer for amendment.

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8. Apart from above, maintainability of the suit for
simplicitor injunction is also an issue which goes against the interest
of the petitioners. That being so, no case for interference in the
extraordinary jurisdiction of this Court is made out.

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9.The petition as such stands dismissed.

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3 o f 3

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BGP.

Mirza Mohammed Khalid Dawood and Ors. v. Bhiwandi Nizampura City Municipal Corporation Thr Its Commissioner and Ors.

Case brief

What is this about?

What did the court decide?

Mirza Mohammed Khalid Dawood and Ors. v. Bhiwandi Nizampura City Municipal Corporation Thr Its Commissioner and Ors.

Case brief

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What did the court decide?

What the court decided

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