Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC010004072020. .1. CH/S No. 48/2020 in
L.C. Suit No. 767/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 48 OF 2020.
IN
L.C. SUIT NO. 767 OF 2017.
Anant Rajaram Palav.……. …...…...................... …. PLAINTIFF.
V/s.
M.C.G.M. ....……………………………….….. …. DEFENDANT.
CORAM : A.G. Santani.
(Court Room No.11).
DATED : 10th August, 2022.
APPEARANCES :
Mr. Virendra T. Dubey, Ld. Advocate for the Plaintiff.
Mr. 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., his accompanying affidavit
and reply of the defendant. 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
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CNR NO. : MHCC010004072020. .2. CH/S No. 48/2020 in
L.C. Suit No. 767/2017.
that during pendency of this suit, the defendant issued the notice dtd.
20.12.2019, U/s. 488 of the MMC Act, in respect of the suit premises for
taking inspection and measurement. By this notice, he also directed this
plaintiff to keep ready the copies of the Approved Plan and Occupation
Certificate. The plaintiff submitted that as the suit premises is tolerated
premises as per the policy and Guidelines of the defendant himself and
as it existed prior to the datum line i.e. the year 1962, in fact, there is
no question of its Approved Plan and Occupation Certificate as required
by the said notice. As such, this notice is not applicable in respect of the
suit premises and it is bad in law. As such, it is required to be declared
as inoperative. The defendant objected this Ch/s. mainly on the ground
that although the said notice came to be issued, it doesn't pertain to the
suit premises.
04. Having considered the rival submissions, at the out-set, it is
pertinent to note that by filing this suit initially, the plaintiff assailed the
notice dtd. 15.03.2017, issued U/s. 354-A of the MMC Act. It seems that
now, during pendency of this suit, the defendant issued this notice U/s.
488 of the MMC Act, calling upon the plaintiff to ready for inspection of
and measurement of the suit premises along-with copies of its Approved
Plan, etc.. However, the plaintiff contended that the suit premises is the
tolerated structure and it existed even prior to the year 1962. As such,
the requirement of the Approved Plan and Occupation Certificate does
not arise. Being so, the notice is bad in law. On the other hand, it is only
the defendant's stand that the said notice was issued but not against the
suit premises. Be that as it may, the fact remains that the suit is at initial
stage and the trial is yet to commence. Being so, considering the nature
of proposed amendment, I feel that it would not cause any harm even to
the defendant. That apart, it would be for the plaintiff alone to establish
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CNR NO. : MHCC010004072020. .3. CH/S No. 48/2020 in
L.C. Suit No. 767/2017.
the same on trial. In the circumstances, to decide the suit issues finally, I
am of the opinion that the proposed amendments are to be allowed. In
the result, I answered point No.1 in the affirmative and to answer point
No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 48/2020 is made absolute
in terms of prayer Clause (a) only.
(ii). The plaintiff is directed to carry out the proposed
amendment in the plaint, positively within two
weeks from passing of this Order and to file
copy of amended plaint simultaneously.
(iii). Costs to follow the event.
(iv). Chamber Summons No. 48/2020, accordingly,
stands disposed of.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 10.08.2022. City Civil Court, Mumbai.
Dictated on : 10.08.2022.
Transcribed on : 10.08.2022.
Signed on : 10.08.2022.
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CNR NO. : MHCC010004072020. .4. CH/S No. 48/2020 in
L.C. Suit No. 767/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11.08.2022 at 11.30 a.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 10.08.2022.
Judgment/Order signed by P.O. on 10.08.2022.
Judgment/Order uploaded on 11.08.2022.
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