Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
1 Date 07.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 76 of 2019
IN
SUIT NO. 7506 of 2003
(H.C. SUIT NO. 3990 OF 2003)
(CNR NO.MHCC010004832019)
Abdul Rasool Akbarali Navroz .. Plaintiff
Versus
M/s. Kishor Industries & Ors. .. Defendants
Appearances :
Adv.A.N.Nasikwala for plaintiff.
Adv.K.D.Jha for defendant no.3 to 7.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge.
C.R. No. : 7
Dated : 07.02.2020
ORDER
1. The plaintiff has filed instant Chamber Summons for
amendment of plaint as per schedule.
2. It is contended by the plaintiff that he has filed suit for
declaration that the defendants are trespassers in and upon
Godown Shed / Annex at rear of the property known as Good
Hope Chamber Annexe, bearing street No. 12, 1st Nishanpada
Cross Lane, Off. Mohd. Umar Kokil Marg, Mumbai – 400 009.
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
2 Date 07.02.2020
(hereinafter shall be referred to as suit property) and for recovery of
possession and for mandatory order of injunction against
defendants.
3. It is contended by the plaintiff that he has obtained decree in
Suit No. 4468 of 1973 against the defendant no. 1 declaring
defendant no. 1 has no right, title and interest in the suit property.
Therefore, inspite of that defendant no. 2 to 7 were seen
occupying suit premises illegally claiming through defendant no. 1.
It is alleged by the plaintiff that defendant no. 2 to 7 illegally
divided the suit premises into 5 portions by internal dividing walls
and illegally started using the suit premises for business and offices
purpose. The defendants illegally, unauthorizedly carried out
alterations, additions and construction, therefore, plaintiff lodged
the complaint with the BMC Authority.
4. It is contended by the plaintiff that during pendency of the
suit, Hon’ble High Court vide its letter dated 05.03.2008 appointed
Court Receiver on the suit property and defendants were allowed
to carry out necessary repair with permission of BMC Authority
under the supervision of Court Receiver and also directed the
defendants to pay Rs. 8,000/ per month to the plaintiff regularly.
Without prejudice the defendants shall pay statutory dues and
permitted increases the defendants shall not dispose off alienate,
encumber or part with the possession or create third party interest
into or upon suit premises till receiver takes possession.
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
3 Date 07.02.2020
5. It is contended by the plaintiff that defendants thereafter,
unauthorizedly, carried out construction of first floor by
constructing three rooms divided into (12A, 12B and 12C) and
unauthorizedly allowed proposed defendant no. 10 to 13 to use
and occupy the first floor under the Leave and License Agreement.
The defendants made structure on the open terrace of first floor by
putting Tarpolin Sheet and collecting monthly compensation from
the third party. It is contended by the plaintiff that he made
complaint with the Dombivali Police Station whereupon the police
recorded the statement of proposed defendant no. 12 to 13. Thus,
it is contended by the plaintiff that he wanted to incorporate
subsequent event which took place at the instance of defendant no.
2 to 7 who sublet illegally to the proposed defendant no. 10 to 13.
Therefore, plaintiff prayed for allowing present Chamber
Summons.
6 The Chamber Summons is opposed by the defendant no. 2 to
7 by filing their say. It is contended by the defendants that as per
order 6 Rule 17, no amendment shall be allowed, if the trial has
already commenced. The defendant contended that the alleged
division of rooms is already occurred prior to filing of the suit and
therefore, the plaintiff pleaded in its plaint that he has filed
complaint with BMC Authority. Therefore, the proposed
amendment can never be called as subsequent event.
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
4 Date 07.02.2020
7. It is contended by the defendants that one Mohammad Ali
Kanji Khoja filed Suit No. 446 of 1973 against M/s. Kishor
Industries. The plaintiff therein sought declaration against the
defendants that the defendants have no right, title or interest to
claim possession in the suit Godown. The said suit proceeded ex
parte and son of Mohammad Ali Kanji Khoja obtained exparte
decree on 30.09.1993. The aforesaid decree has been obtained
suppressing facts that defendant no. 2 is having possession and
carrying on the business on the basis of of Deed of Assignment
dated 12.11.1990. The plaintiff by way of proposed amendment
making illegal effort to add additional existing structures in the
above suit premises which infact does not form part of plaintiff’s
claim. The proposed amendment are not necessary and same is
barred by law of limitation. The plaintiff seeking possession on
ground floor godown premises only. No leave under Order 2 Rule
2 of CPC has been sought by the plaintiff. Therefore, the proposed
amendment can not be considered, as it will change the cause of
action. The proposed amendment would separate cause of action
for which the plaintiff have efficacious remedies under the law.
Hence, defendants prayed for dismissal of the Chamber Summons.
8. Heard both the sides. Perused Chamber Summons, reply and
pleadings of the parties. The plaintiff by way of proposed
amendment is seeking to incorporate the events that the
defendants made temporary structure on the first floor of the suit
premises and given rooms (12A, 12B and 12C) let out to proposed
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
5 Date 07.02.2020
defendant no. 10 to 1. The amendment of plaint is governed by
Order 6 Rule 17 of Code of Civil Procedure which thus read as
“The Court may at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on such terms as
may be just, and all such amendments shall be made as may be
necessary for the purpose of determining the real questions in
controversy between the parties. Provided that no application for
amendment shall be allowed after the trial has commenced, unless
the Court comes to the conclusion that inspite of due diligence, the
party could not ave raised the matter before the commencement of
trial.”
9. The Hon’ble Apex Court in case of Rameshkumar Agrawal
V/s. Rajmala Exports Pvt. Ltd. reported in 2012(3) AIR Bombay R
572 culled out certain basic principles.
i. Whether amendment sought is imperative for proper
and effective adjudication of the case.
ii. Whether application is bonafide or malafide.
iii. Amendment should not cause any prejudice to other
side which can not be compensated in terms of money.
iv. Refusal of amendment would in fact lead to injustice or
lead multiple litigation.
v. Whether proposed amendment constitutionally or
fundamentally changes nature and character of the
case.
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
6 Date 07.02.2020
vi. As a General Rule, amendment should be denied if a
fresh suit on amended claims would be barred by law
of limitation.
10. It is further held by Hon’ble Apex Court that although the
amendment can not be claimed as a matter of right and under all
circumstances, but Court should not adopt hyper technical
approach, instead should be liberal in its approach.
11. In the present case, the allegation of the plaintiff is that the
defendants by constructing temporary structure put proposed
defendant no. 10 to 13 in possession. The plaintiff filed the
statement recorded by the Police as well as Agreement entered
into between defendant and proposed defendants, which clearly
shows that defendants created illegal tenancy and inducted
proposed defendant no. 10 to 13 inspite of fact that the Court
Receiver is appointed on the suit property vide, order dated
05.03.2008 and property is custodia legis. The plaintiff filed
instant suit for declaration that the defendants are the trespassers.
It appears that the defendants created third party interest,
therefore, in my view, the aforesaid proposed amendments are
very much essential to decide the dispute between the parties.
Hence, in my view, the plaintiff made out case for seeking
amendment to the plaint. Thus, I proceed to pass the following
oder :
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
7 Date 07.02.2020
ORDER
1. Chamber Summons No. 76 of 2019 is hereby allowed in
terms of prayer clause (a) and (b).
2. Plaintiff to carry out necessary amendment as per schedule
within 14 days from the date of order.
3. Parties to bear their own cost.
4. Chamber Summons No. 76 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge
City Civil & Sessions Court
Dated : 07.02.2020 Gr. Bombay
Dictated on : 07.02.2020
Transcribed on : 07.02.2020
Draft submitted on : 07.02.2020
Checked on : 07.02.2020
Signed on : 07.02.2020
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Chamber Summons 76-19 In Suit No. 7506-2003
H.C. SUIT NO. 3990-2003
8 Date 07.02.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/02/2020 at 2.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
07/02/2020
JUDGMENT/ORDER signed by
P.O. on
07/02/2020
JUDGMENT/ORDER uploaded
on
10/02/2020
z
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