Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO.: MHCC01-000573-2020. .1. Ch/s No. 73/2020 in
L.C. Suit No. 6989/2006.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 73 OF 2020.
IN
L.C. SUIT NO. 6989 OF 2006.
Mohd. Farooque Jatu. ...…….................………….. …. PLAINTIFF.
V/s.
Richie Albert Jhon Misquita and the Others....... …. DEFENDANTS.
CORAM : A.G. Santani.
(Court Room No.11).
DATED : 06th September, 2022.
APPEARANCES :
Mr. Anirudha Chandekar, Ld. Advocate for the Plaintiff.
Mr. Nikhil Zhoka, Ld. Advocate for Defendant No. 3.
Mrs. Smita Chavan, Ld. Advocate for Defendant No.6/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 this Ch/s. and say of defendant Nos.
3 and 6. Rest of the defendants remained absent to contest this Ch/s..
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 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.: MHCC01-000573-2020. .2. Ch/s No. 73/2020 in
L.C. Suit No. 6989/2006.
that in this suit, he is claiming under the agreement of dtd. 05.10.1972,
whereby defendant No.1 agreed to sell the suit property in his favour.
However, it was not an agreement for sale, but a document, confirming
upon him a right to obtain the Deed of Conveyance from defendant No.
1. Moreover, by filing this suit, he prayed for his declaration as owner of
the said land, which is not in consonance with the agreement. Hence,
such prayer, in para 39 (a) of the plaint, is to be deleted. That apart, in
view of the prayer at para 39 (b) of the plaint, he is seeking the specific
performance of the agreement dtd. 05.10.1972. However, inadvertently,
the pleadings of his readiness and willingness to perform this agreement
as per Section 16 of the Specific Reliefs Act, 1963, remained to be taken
in the plaint. As such, he was ready and willing as per the agreement of
dtd. 05.10.1972 and the Deed of Confirmation dtd. 08.05.2000. In fact,
he performed his part of the said agreement and Conveyance by paying
the entire consideration. The proposed amendments are necessary and
it would not cause any harm to the defendants. Defendant No. 3 denied
this Ch/s., as not tenable after commencement of trial. And, the plaintiff
could not justify filing of this Ch/s. at this stage of the matter. Further,
the proposed amendments would change the cause of action for filing of
the suit and it would cause prejudice to him. This Ch/s is misconceived
and needs to be rejected. Defendant No. 6/MCGM strongly objected this
Ch/s. and prayed for its rejection.
04. Heard both sides, in consonance of their respective stands.
Ld. advocate for the plaintiff relied upon the case of Revajeetu Builders
and Developers Vrs. Narayanswamy and Sons and the Ors. in 2009 SCC
Online SC 1709 and submitted that while considering the application
for an amendment, the determination of real question in controversy is
of prime consideration. He invited my attentions on paragraph Nos. 61
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CNR NO.: MHCC01-000573-2020. .3. Ch/s No. 73/2020 in
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and 63 of this Citation, which deal with the guidelines and factors to be
taken into account for considering the amendment application.
05. Having considered the rival submissions, at the outset, it is
to be noted that by filing this suit in the year 2006, the plaintiff prayed
for bundle of reliefs, viz. his declaration as owner of the suit land along-
with the other ancillary reliefs. On 04.10.2018, this Court framed issues
(Exhibit 8) and the matter was posted for recording evidence. However,
the fact remained that thereafter, the plaintiff could not lead his side on
one count or the other and presently, he is not under the dock. Being so,
the trial is yet to commence. Certainly, the proposed amendment, more
preciously as regards the plaintiff's alleged readiness and willingness to
ask the relief of specific performance, ought to have been pleaded while
filing of this suit in the year 2006 itself. Simply because, it was the legal
requirement. He is also praying for deletion of the prayer of declaration
as owner, contending that the said agreement was only confirming right
for convenience. Even this fact could have been pleaded much earlier, as
it is nowhere the plaintiff's stand that recently, he came to know about
it. On this background, there are latches on his behalf to file this Ch/s..
However, it is equally true that here, the trial is still to commence. That
apart, the proposed amendments meet the legal requirement on behalf
of the plaintiff. Moreover, the proposed amendments are necessary even
to decide the real question in controversy between the parties. It would
facilitate this Court to adjudicate upon the suit issues effectively as well
as finally. Furthermore, on the basis of proposed amendments, now, the
plaintiff would not be able to file a fresh suit. Consequently, in the light
of the Guidelines laid in the case of Revajeetu Builders and Developers,
Cited Supra, I am of the opinion that this Ch/s. deserves to be allowed.
However, while doing so, rules of natural justice do require imposition
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CNR NO.: MHCC01-000573-2020. .4. Ch/s No. 73/2020 in
L.C. Suit No. 6989/2006.
of the adequate costs upon the plaintiff for further delaying this matter.
Therefore, 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. 73/2020 is made absolute
in terms of prayer Clause (a) only, subject to
payment of costs of Rs. 3,000/-in favour of the
D.L.S.A., Mumbai, positively till the next date.
(ii). On the payment of the costs, the plaintiff is directed
to carry out the proposed amendment in the body of
the plaint, positively within two weeks therefrom
and to file copy of amended plaint simultaneously.
(iii) The parties are called upon to expedite the matter.
(iv). Chamber Summons No. 73/2020, accordingly,
stands disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 06.09.2022. City Civil Court, Mumbai.
Dictated on : 06.09.2022.
Transcribed on : 07.09.2022.
Signed on : 08.09.2022.
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CNR NO.: MHCC01-000573-2020. .5. Ch/s No. 73/2020 in
L.C. Suit No. 6989/2006.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08.09.2022 at 2.30 p.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 06.09.2022.
Judgment/Order signed by P.O. on 08.09.2022.
Judgment/Order uploaded on 0809.2022.
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