Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.106-2021 in Suit 1340-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.106 OF 2021
IN
L.C. SUIT NO.1340 OF 2020
CNR NO.MHCC01-000464-2021
Pankaj Kumar & Co. … Plaintiff
Vs.
Saur Jagat & Ors. … Defendants
AND
Dy. Collector (Enc. & Rem.) & Competent
Authority and Anr.
...Respondents
Appearances:
Ld. Adv Gandhy for the plaintiff.
Ld. Adv Aashi Sirohiwala for defendant No.3.
Ld. Adv. Trivedi for respondent No.2.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATED : 10th FEBRUARY 2021
ORAL ORDER
The plaintiff has taken out this chamber summons under
Order I Rule 10 and VI and Rule 17 of the Code of Civil Procedure,
1908.
2. Heard. Perused the affidavit filed in support of the
chamber summons and the reply.
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3. The learned Advocate for the plaintiff has vehemently
submitted that the proposed amendment is necessary for a complete
effectual adjudication of the real questions in controversy between the
parties and to avoid multiplicity of the proceeding. According to him,
the proposed amendment if allowed would change the nature of the
suit. He has, therefore, requested to allow the chamber summons in
terms of prayer clauses (a) and (b). He has laid strong emphasis on the
following citations to bolster up his contentions.
1. Ragu Thilak D. John Vs. S. Rayappan and Ors (2001) 2
SCC 472
2. Chakreshwari Construction Pvt. Ltd. Vs. Manohar Lal
((2017) 5 SCC 212)
3. Bharat Petroleum Corporation Ltd. Vs. Precious Finance
Investment Pvt. Ltd. (2005 (1) Mh.L.J. 331)
4.
Per contra, the learned Advocate for defendant No.2 has
submitted that the plaintiff has taken out this chamber summons
belatedly with a mala fide intention. So, the chamber summons is liable
to be dismissed on the ground of delay and latches.
5. The learned Advocate for respondent No.2 has submitted
that the Chief Executive Officer, Slum Rehabilitation Authority is a
neither necessary nor proper party to the present suit, and therefore, he
may not be joined as a defendant to the present suit.
6. In Ragu John's case (
cited supra), the Hon’ble Supreme
Court after referring to the judgments in Charan Das Vs. Amir
Khan (AIR 1921 PC 50), L.J. Leach & Co. Ltd. & Anr. Vs. Jardine
Skinner & Company (1957 SCR 438), Smt.Ganga Bai Vs. Vijay Kumar &
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CS No.106-2021 in Suit 1340-2020
Ors. (1974 (2) SCC 393), M/s.Ganesh Trading Co. Vs. Moji Ram (1978
(2) SCC 91) and various other authorities, this Court in B.K.N. Pillai Vs.
P.Pillai & Anr. (JT 1999 (10) SC 61) held: "The purpose and object of
Order 6 Rule 17 CPC is to allow either party to alter or amend his
pleadings in such manner and on such terms as may be just. The power
to allow the amendment is wide and can be exercised at any stage of
the proceedings in the interests of justice on the basis of guidelines laid
down by various High Courts and this Court. It is true that the
amendment cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the courts while deciding such
prayers should not adopt a hyper-technical approach. The liberal
approach should be the general rule particularly in cases where the
other side can be compensated with the costs. Technicalities of law
should not be permitted to hamper the courts in the administration of
justice between the parties. Amendments are allowed in the pleadings
to avoid uncalled for a multiplicity of litigation.
7. In Chakreshwari Construction's case (
cited supra), the
Hon'ble Supreme Court has held that the following basic principles
emerge which ought to be taken into consideration while allowing or
rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and
effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala
fide;
(3) the amendment should not cause such prejudice to the other
side which cannot be compensated adequately in terms of money;
(4) refusing amendment would, in fact, lead to injustice or lead
to multiple litigation;
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(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation
on the date of application.
8. Bharat Petroleum Corporation's case (
cited supra), the
courts while deciding the application for amendment should not adopt a
hyper-technical approach. The liberal approach should be the general
rule particularly in cases where the other side can be compensated with
the costs. Amendment needs to be allowed to avoid uncalled-for
multiplicity of litigation. The delay in filing the petition for amendment
of the pleadings should be properly compensated by costs and error or
mistake which, if not fraudulent, should not be made a ground for
rejecting the application for amendment of a plaint or written
statement. It has been further held that while considering whether an
application for amendment should be allowed, the court is not expected
to go into the correctness or falsity of the case in the amendment.
Likewise, it should not record a finding on the merits of the amendment
and the merits of the amendment sought to be incorporated by way of
the amendment are not to be adjudged at the stage of allowing the
prayer for amendment.
9. In the backdrop of the principles enunciated in the
aforesaid decisions, I proceed to decide the present chamber summons.
10. From the pleadings in the plaint, it seems that the plaintiff
is developing the property bearing C.T. S. No.68, 68(1-9) and 69 (part)
at Station Road, Vikhroli (W), Mumbai 400 083 under Slum
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Rehabilitation Scheme (hereinafter referred to as “the suit property”).
The plaintiff has alleged that defendant No.1 is trying to encroach on
C.T.S. No.69 (part) by demolishing the boundary wall of the suit
property. The plaintiff has, therefore, sought permanent injunction
against defendant No.1 restraining him from demolishing the boundary
wall of the suit property. It is thus, clear that there is a dispute between
the plaintiff and defendant No.1 over the lands which they are
developing.
11. From the schedule to the chamber summons, it appears
that the plaintiff intends to amend the plaint based on the sanction
granted by the Slum Rehabilitation Authority for development of the
suit property. By way of the proposed amendment the plaintiff intends
to rely upon the documents at Exh.B to Exh.E-7 appended to the
chamber summons and to add new paras 1-A, 1-B, 7-A to 7-G in the
plaint as per the schedule to the chamber summons.
12. To my mind, the proposed amendment is necessary for
complete and effectual adjudication of the real question in controversy
between the parties and to avoid multiplicity of the proceedings. The
trial of the present suit is yet not commenced. The proposed
amendment if allowed to be incorporated in the plaint would not
change the nature of the suit. So also, defendants would get an
opportunity to file an additional written statement to the extent of the
amended plaint. As such, if permission is granted to the plaintiff to
amend the plaint as per the schedule to the chamber summons, no
prejudice would be caused to defendants.
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13. True, the plaintiff has not promptly applied for amendment,
but merely on the ground of the delay, the chamber summons cannot be
dismissed more so when the proposed amendment is necessary for just
and effective adjudication of the dispute between the plaintiff and
defendants. For the delay in taking out the present chamber summons,
defendant No.1 can be compensated in terms of money.
14. The plaintiff has, however, failed to show that the presence
of respondents No.1 and 2 is required for a complete and final
adjudication of the question involved in the present suit. So, merely
because respondents No.1 and 2 had sanctioned plans of the lands
which are being developed by the plaintiff and defendant No.1 under
the Slum Rehabilitation Scheme, they cannot be held to be proper or
necessary parties to the present proceedings. The plaintiff can examine
the concerned officer of respondents No.1 and 2 as they are witnesses.
So, it is not necessary to implead respondents No.1 and 2 as parties to
the present proceedings.
15. For the reasons enumerated in the foregoing paras, I hold
that the chamber summons deserves to be partly allowed subject to
costs of Rs.1000/-. So, I hold that chamber summons deserves to be
partly allowed and proceed to pass the following order:-
ORDER
1. Chamber Summons No.106 of 2021 is partly
allowed in terms of prayer clause (b) subject to costs of
Rs.1,000/-.
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2. The plaintiff to carry out the proposed amendment
in the plaint on or before the next date as per the schedule
to the chamber summons. However, the words “defendant
No.5” be replaced with the words “the Chief Executive
Officer, Slum Rehabilitation Area” wherever it occurs in
the schedule to the chamber summons.
3. Defendants shall be at liberty to file an additional
written statement, if any, to the extent of the amended
plaint.
4. Chamber Summons No.106 of 2021 is accordingly
disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Dated : 10/02/2021 City Civil Court, Gr. Bombay
Dictated on : 10/02/2021
Transcribed on : 10/02/2021
HHJ signed on : 10/02/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
12.02.2021 5.46 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
10.02.2021
JUDGEMENT /ORDER signed by
P.O. on
10.02.2021
JUDGEMENT /ORDER uploaded
on
12.02.2021
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