Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/S No. 40 of 2020
in Suit No.1681 of 2019 1
MHCC010003642020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS No. 40 OF 2020.
IN
SUIT No. 1681 OF 2019.
Shri Anoop Trivedi. ...Applicant/
Defendant.
In the matter between-
Badrinarayan Baliraj Maurya. ...Plaintiff.
V/s.
Shri Anoop Trivedi. ..Defendant.
Appearance:
Adv. for Plaintiff. : Shri R.S.Maurya.
Adv. for defendant : None present.
CORAM : Smt. Ashwini V. Kasture.
C.R.No. : 59
DATE : 04th December, 2024.
ORDER
This Chamber Summons is taken out by the defendant for
permitting him to amend non affirm written statement as per the
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schedule annexed to it.
2. According to the defendant, he has filed his written
statement on 19.11.2016 and same was un-affirmed. In the said written
statement, the important factual pleading are not pleaded. The suit is
filed by the plaintiff on wrong fotting and in view of it the factual reply
is required to came in his written statement. Therefore, his written
statement is required to be amended. The written statement filed by
him in very hurried manner and in view of it the same remained
unanswered. He is laymen and unaware of the legal position.
Therefore, the amendment is very much necessary. If the amendments
are allowed, no prejudice will be caused to the plaintiff. The balance of
convenience is in his favour. Hence, requested to allow the Chamber
Summons for carrying out the amendment.
3. The plaintiff objected the Chamber Summons filed by the
defendant by filing his affidavit in reply to Chamber Summons.
According to him, the Chamber Summons in taken out for the reliefs
seeking permission to amend the un-affirmed written statement filed by
the defendant. But the schedule of the amendment shows that the
defendant is seeking permission not only to amend the written
statement but also the permission to file totally afresh and altogether
anew written statement.
4. The same is not permissible in the law. Under the pretext
of amendment in the written statement, the defendant cannot file
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afresh and anew written statement. The apology of defendant can only
be accepted to the extent to add affirmation clause, but certainly not to
add and alter the entire written statement. Once opportunity to file
written statement is availed by the defendant, the second opportunity
cannot be given to the defendant to re-plead the factual pleading. It is
false to say that the defendant is the laymen. He is retired bank
manager and qualified persons. He is very much aware about the legal
position. If the Chamber Summon is allowed, he will suffer grave, harm,
loss and prejudice. The balance of convenience is not in favour of the
defendant. Under such circumstances, he requested that the Chamber
Summons be dismissed.
5. Perused the Chamber Summons, supported with the
affidavit, reply filed on it. Heard both the sides.
6. The present Chamber Summons has been filed to permit
the defendant to amend the written statement filed by him. It is
admitted fact that the the written statement filed by the defendant is
within the limitation. According to the defendant, the pleadings of his
defence has not taken by his earlier advocate. Hence, he requested to
allow him to carry out the amendment in his written statement. The
plaintiff has objected the Chamber Summons on the ground that the
defendant cannot amend the written statement to file anew and afresh
written statement. The proposed amendments according to the plaintiff
is in the nature of anew written statement and therefore, he has strong
objection to allow the Chamber Summons.
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7. Perusal of the Chamber Summons shows that the defendant
has also filed the Chamber Summons to allow him to delete ‘un-
affirmed’ word mentioned by him in the present Chamber Summons
which is allowed. According to the defendant, the pleadings in written
statement are necessary to be amended for the purpose of his defence
and if the Chamber Summons is allowed and the defendant is permitted
to carry out the amendment in the written statement as prayed by him,
no prejudice would be caused to plaintiff. On the contrary, if the
Chamber Summon is not allowed the defendant would not be able to
defend his case properly. Hence, in my view, it would be proper to allow
the present chamber summons. Hence, I pass the order :
ORDER
1. The Chamber Summons No. 40 of 2020 is allowed
subject to cost of Rs.10,000/-(Rs. Ten Thousand only)
payable to the plaintiff on or before next date.
2. On payment of aforesaid cost, the defendant shall
amend the written statement as prayed and to file amended
copy of written statement on record on or before next date.
3. The defendant to serve the copy of amended written
statement to the plaintiff on or before next date
4. The Chamber Summons No. 40 of 2020 is disposed
of accordingly.
(Smt. A.V. Kasture)
Judge
Dt.:04/12/2024 City Civil Court, Gr. Mumbai.
Declared on : 04.12.2024
Dictated on : 04.12.2024.
Transcribed on : 10.12.2024
Checked on : 10.12.2024.
Signed on :
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in Suit No.1681 of 2019 5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.12.2024 at 01.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ Smt.A.V.Kasture,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 04.12.2024
Order signed by P.O. on 10.12.2024
order uploaded on 11.12.2024
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