Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 34 OF 2018
CNRMHCC010001462018
IN
L.C.SUIT NO. 1635 OF 2010
CNRMHCC010020642010
Glance Opticians )...Plaintiff.
V/s.
The Municipal Corporation of Greater Mumbai )...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 23/01/2018.
Ld. Adv. Shri Bhosale for the plaintiff.
Ld. Adv. Mrs. Tadavi for the defendants /MCGM
ORAL ORDER
This chamber summons is taken out by the plaintiff for
amendment of the plaint which is supported by an affidavit . The
Municipal Corporation of Greater Mumbai has opposed the chamber
summons by filing reply.
2. Heard learned advocates of both the sides.
3. The main suit is old one and this application for
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amendment is taken out after long period. I have carefully perused the
proposed amendment which is annexed to the schedule of chamber
summons. The chamber summons is opposed firstly on the ground that
three reliefs are claimed in the one chamber summons and secondly , if
the chamber summons is allowed then the so called amendment would
change the nature of the suit. On perusal of the prayer clause in the
chamber summons , the prayer clause (b) and (c) seems to be the
formal one in the sense that , it speaks of providing costs and other
reliefs. Thus mainly chamber summons is only for amendment.
4. The main suit is challenging the notice issued under
section 351 of the Mumbai Municipal Corporation Act ( in short 'MMC '
Act ). Admittedly, the suit is filed by the ground floor shops in the
building including two stalls. It is submitted that, due to typographical
error the Mezanine floor has being mentioned . From the documents on
record, it appears that building is assessed to the property taxes. It is
also the matter on record that the MCGM has issued the common
circular to all the shops of the building. The learned advocate Shri
Bhosale submitted that previously there was another advocate on record
and there are some drafting errors which needs to be corrected for fair
trial and proper adjudication of the case. It is trite law that for the
mistake committed by the advocate, the litigant should not suffer . It is
also submitted that the description of the notice structure has not been
correctly and fully described in the original plaint and due to ignorance
the notice structure is not properly described. On perusal of proposed
amendment, those facts are necessary to be brought on record for
deciding the real questions in controversy between the parties. To my
mind, as the notice under section 351 of the MMC Act is challenged ,
the other description would be the matter of evidence and at this stage
if the amendment is allowed then it is not going to change the nature of
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the suit. The trial is not yet commenced. If the amendment is allowed
then certainly the MCGM will get an opportunity to file the additional
written statement, if any. To avoid multiplicity of the proceedings and
further considering the provisions 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.
ORDER
1. Chamber summons no. 34 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 upon
the defendants within two weeks thereafter.
3. Chamber Summons is disposed of accordingly.
(Kishore M. Jaiswal )
Asstt. Sessions Judge,
Date:23/01/2018. City Civil & Sessions Court,
Gr.Mumbai.
Dictated on :23/01/2018.
Transcribed on :24/01/2018.
Signed on :24/01/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
05.02.2018 Mrs. V.V.Mhatre
TIME:11.00 a.m.
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
23/01/2018
JUDGMENT/ORDER signed by
P.O. on
24/01/2018
JUDGEMENT/ORDER uploaded on 05/02/2018
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