Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 23 OF 2018
CNRMHCC01001352018
IN
L.C.SUIT NO. 241 OF 2015
CNRMHCC010011232015
1. Shri Hanumant Rajaram Chavan & Ors. )...Plaintiff.
V/s.
1. Municipal Corporation of Greater
Mumbai & Ors. )...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 22/01/2018.
Ld. Adv. Dalal for the plaintiffs.
Ld. Adv. Mr. Kumawat for defendants /BMC
ORAL ORDER
This chamber summons is taken out by the plaintiff for
amendment of the plaint, after the Technical Advisory Committee ( in
short 'TAC') has given its report on 19th July, 2017 and 21st July, 2017.
This chamber summons is supported by an affidavit being executed by
Constituted Power of Attorney of plaintiff no.7 Vishwanath V. Shetty.
The defendants/ Municipal Corporation of Greater Mumbai ( in short '
MCGM' ) has filed reply to the chamber summons on affidavit being
executed by Junior Engineer Mr. Harshad R. Nalawade. The MCGM
-- 1 of 5 --
2
has strongly opposed the chamber summons.
2. I have heard advocate Mr.Dalal for the plaintiffs and
advocate Mr. Kumawat for the defendants/ MCGM respectively.
3. I have carefully perused the plaint as well as the roznama.
4. The main prayer in the suit is regarding challenging two
notices issued by the MCGM under section 354 of the Mumbai
Municipal Corporation Act ( in short MMC Act) alleging that the suit
premises is in dilapidated condition. The record shows that the
plaintiff has preferred the notice of motion no. 655 of 2015 and the
interim stay was granted and by the Courts order the matter was
referred to the TAC. The TAC has submitted the report on 6/8/2015
which also states that the conditions of the building is not good and
needs to be demolished. This TAC committee report to 6/8/2015 was
also challenged in the suit by carrying out amendment as per order
dated 25th April, 2017 passed in chamber summons no. 217 of 2015.
Thereafter it shows that the matter was kept for hearing on notice of
motion no. 655 of 2015 and in the midst of the hearing it was ordered
by my learned Predecessor that the TAC was directed to consider its
report dated 29/08/2015 and it appears that the said order was passed
as the TAC has not carried out any technical tests , though it was
directed by the Hon'ble High Court for confirming whether the disputed
construction is in dilapidated conditions or nor. By virtue of this
chamber summons , the plaintiffs intends to challenge the new TAC
report dated 19/7/2017 and 25/7/2017. It is a matter of record that
the previous TAC report are also challenged and the suit was amended.
The MCGM has fairly considered that those amendments were not
-- 2 of 5 --
3
challeged before any higher authority.
5. On careful perusal of the record , it is very clear that the
report of the TAC committee initially was called for in view of the
directions given by the Hon'ble High Court in Writ petition no.
1135/14. Thereafter, the record shows that as per order dated 4th May,
2017 passed in notice of motion no. 655 of 2015 , the TAC was directed
to consider its report and filed the fresh report after making compliance
as mentioned in para no. 9 of the said order. All these events has
occurred during the pendency of the suit. As the suit is already
amended wherein previous TAC report is challenged and declaration is
also sought for, if the proposed amendment is allowed then considering
the present amended plaint, it is not going to change the nature of the
suit. Per contra, the proposed amendment as reflected in the schedule
annexed to the chamber summons, in my opinion, is necessary to
determine the real questions in controversy between the parties as one
of the issue before the Court will be with regard to the conditions of the
suit building. The learned advocate for the plaintiff has drawn my
attention to the contents of the report wherein it is mentioned that
certain tests were not carried out as it was not necessary. If the plaint is
allowed to be amended , then the defendant/ MCGM will get an
opportunity to amend the written statement if any. Thus to avoid the
multiplicity of the proceedings also the proposed amendment is
necessary to be incorporated in the main suit. Nonetheless, as these
events have occurred during the pendency of the suit and as per the
directions of the Court, therefore considering the scope of order 6 rule
17 of the Civil Procedure Code, this chamber summons needs to be
allowed in the interest of justice . Hence I pass the following order.
3
-- 3 of 5 --
ORDER
1. Chamber summons no. 23 of 2018 is allowed and made
absolute in terms of prayer clause (a).
2. The plaintiff to carry out the amendment as per the
schedule annexed to the chamber summons within
two weeks and shall supply the copy of amended plaint to
the defendants within two weeks thereafter.
3. Chamber Summons is disposed of accordingly.
(Kishore M. Jaiswal )
Asstt. Sessions Judge,
Date:22/01/2018. City Civil & Sessions Court,
Gr.Mumbai.
Dictated on :22/01/2018.
Transcribed on :23/01/2018.
Signed on :
-- 4 of 5 --
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
24.01.2018 Mrs. V.V.Mhatre
TIME:5.45 p.m.
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
22/01/2018
JUDGMENT/ORDER signed by
P.O. on
23/01/2018
JUDGEMENT/ORDER uploaded on 24/01/2018
-- 5 of 5 --