Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC01-000169-2018. .1. CH/S No. 38/2018 in
L.C. Suit No. 704/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 38 OF 2018.
IN
L.C. SUIT NO. 704 OF 2017.
Kamlaprasad Shivsaran Pathak. …....….........… …. PLAINTIFF.
V/s.
M.C.G.M.+2. …..............………………….……. …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 2nd February, 2023.
APPEARANCES :
Shri. Virendra T. Dubey, Ld. Advocate for the Plaintiff.
Shri. Sunil C. Khandagale, Ld. Advocate for the Defendant/MCGM.
01. The plaintiff has taken out this Chamber Summons (for the
short ‘the Ch/s’), U/O. VI Rule 17 of the Civil Procedure Code, 1908, for
amendment in the plaint. Perused the Ch/s., the accompanying affidavit
and say of defendant Nos. 1 and 2. Heard both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the proposed amendment is
necessary for deciding the real question
in controversy between the parties ?…. .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By filing this Ch/s., the plaintiff came with the specific case
that without considering his reply and documents, defendant Nos.1 and
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CNR NO. : MHCC01-000169-2018. .2. CH/S No. 38/2018 in
L.C. Suit No. 704/2017.
2 issued the notices dtd. 19.07.2017, 16.08.2017 and 26.12.2017, only
on the say defendant No. 3, who wanted to remove this suit premises
with an intention to get benefits of TDR from defendant Nos. 1 and 2.
That apart, defendant Nos. 1 and 2 did not take any step for widening
of the New Hall road as alleged in the said notices and at the instigation
of defendant No. 3, issued notices against Vidya Bhavan Chawl. In view
of this position, the said notices are bad in law and not binding upon
the plaintiff. Further, on 15.11.2017, he also applied for the information
under the RTI Act, however, defendant Nos. 1 and 2 did not provide the
said information. Hence, by filing this Ch/s., he prayed for the proposed
amendment of facts with additional relief of declaration that the notices
are inoperative. Contrarily, defendant Nos. 1 and 2 denied this Ch/s. as
they already issued the allotment letter dt. 16.08.2017 and the plaintiff
is to comply with some formalities of giving undertaking. Still, he didn't
comply with the procedure and filed this Ch/s.. Therefore, it needs to be
dismissed as preferred at belated stage.
04. Considering the rival stands, it is notable that by filing this
suit, the plaintiff assailed the notice dtd. 16.12.2016, issued U/s. 56 of
the MRTP Act, and for perpetual injunction. It seems that in view of this
Ch/s., now, he is assailing the said notices as being issued at the behest
of defendant No. 3. Certainly, it would for him to substantiate the same
on trial. The suit is at initial stage and the trial is still to commence. In
the circumstances, even no harm would be caused to the defendants, if
the proposed amendment is allowed. That apart, it would facilitate this
Court to adjudicate upon the suit issues finally. Taking into account the
nature of proposed amendments, it can safely be inferred that there was
no hurdle for the plaintiff to prefer this Ch/s. much earlier and as such,
it is filed belatedly. Consequently, while allowing this Ch/s., it would be
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CNR NO. : MHCC01-000169-2018. .3. CH/S No. 38/2018 in
L.C. Suit No. 704/2017.
just to impose some costs upon him to have further delayed the matter.
Hence, I answered point No.1 in the affirmative and in answer to point
No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No.38/2018 is made absolute in
terms of prayer Clause (a) only, subject to payment of
costs of Rs.1,500/-(Rs. One Thousand Five Hundred) in
favour of the D.L.S.A.,Mumbai, positively till the next date.
(ii). On the payment of the costs, the plaintiff is called upon to
carry out the proposed amendment in the plaint, within
two weeks, and to file copy of amended plaint
simultaneously.
(iii). Chamber Summons No. 38/2018, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 02.02.2023. City Civil Court, Mumbai.
Dictated on : 02.02.2023.
Transcribed on : 03.02.2023.
Checked and Signed on : 03.02.2023.
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CNR NO. : MHCC01-000169-2018. .4. CH/S No. 38/2018 in
L.C. Suit No. 704/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
04.02.2023. at 01.05 p.m.
Name of the Stenogrpher
Mrs. S.R. Mejari
Name of the Judge HHJ Shri. A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 02.02.2023.
Judgment/Order signed by P.O. on 03.02.2023.
Judgment/Order uploaded on 04.02.2023.
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