Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 75 OF 2020
IN
SUIT NO. 3164 OF 2009
(CNR NO. MHCC01-000579-2020)
Ashutosh Vinod Narvekar ...(since deceased)
Mrs.Usha Vinod Narvekar ...Plaintiff.
V/s.
1.Girish Gajanan Kanitkar & Ors. ...Defendants.
Appearance:
Ld. advocate Suneel D. Mogre for plaintiff.
Ld. advocate Snehal Marathe for defendant no.1.
Ld. advocate Amar Patil for defendant no. 2(a).
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 24/11/2021.
ORDER
This chamber summons is taken out on behalf of the plaintiff for
making proposed amendment in the plaint. This chamber summons is
resisted on behalf of the defendants by filing their reply.
2. Heard both the learned counsels on behalf of both the sides at
length. Read the present chamber summons and say of the defendants
thereon. Perused record.
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3. The learned counsel on behalf of the plaintiff has submitted that
plaintiff wants to amend the plaint by inserting the plaintiff’s contention
which is mentioned in schedule alongwith chamber summons. The
learned counsel on behalf of the plaintiff has further submitted that if
this chamber summons is to be allowed then nature of the suit will not
change, it will not surprise to the defendants. The trial is not began.
Only on last date, issues are framed. The plaintiff has not filed affidavit
of evidence on record. On these grounds, the learned counsel on behalf
of the plaintiff has requested that the present chamber summons taken
out by the plaintiff may kindly be allowed.
4. The learned counsel on behalf of the defendants resisted the
present chamber summons arguing that the present chamber summons
cannot be allowed because issues are framed and therefore, trial is
began. The learned counsel on behalf of the defendants have further
submitted that if this proposed amendment is to be allowed, then the
nature of suit will be changed and it will cause injustice on the part of
the defendants. On these grounds, the learned counsel on behalf of the
defendants have requested that the present chamber summons taken
out by the plaintiff may kindly be dismissed with costs.
5. The learned counsels on behalf of the defendants have relied on
the judgment of Supreme Court in the case of Vidyabai and Ors. V/s.
Padmalatha and Anr., reported in AIR 2009 Supreme Court 1433. The
Hon’ble Supreme Court has held that,
“Civil P.C.(5 of 1908), O.6 R.17 Proviso- Amendment of pleadings-
Bar after trial has commenced- Trial commences on date issues are
framed. Amendment of W.S. sought after plaintiff has filed affidavit
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in lien of examination-in-chief -Grant of leave by High court to
amend W.S. -Liable to be set aside -Moreover Trial Court’s order
refusing amendment neither suffered from jurisdictional error nor
any error of law -Interference with order in writ jurisdiction-
Improper. Constitution of India, Art. 226.”
6. After hearing the arguments advanced by learned counsels on
behalf of both the sides at length, on perusal of the record and citation
referred on behalf of learned counsel on behalf of the defendant supra,
it appears to me that the ratio held in citation with due respect is not
applicable to the present case in my hand due to differ of facts and
circumstances. In the present case, the roznama dated 12/12/2019
shows that the issues are framed and matter was posted on 01/02/2020
for filing evidence of the plaintiff. Meanwhile, the plaintiff had taken
the matter on record by preceipe dated 15/01/2020 and tendered this
chamber summons.
7. On scrutiny of the proposed amendment which is mentioned in
the schedule alongwith chamber summons, it appears to me that, if this
chamber summons is to be allowed, certainly nature of the suit will not
be changed. Moreover, the dispute in between the parties will be
decided on merit. Hence, I inclined to allow this chamber summons.
ORDER
1. Chamber Summons No.75/2020 is hereby allowed as prayed for.
2. The plaintiff and her advocate are hereby directed to carry out
proposed amendment within stipulated period.
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3. Chamber Summons No.75/2020 is disposed off accordingly.
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :24/11/2021. Gr. Mumbai
Dictated on: 24/11/2021
Transcribed on: 24/11/2021
HHJ signed on: 24/11/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
24/11/2021 at 5.00 p.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
24/11/2021
Judgment/order signed by P.O. on 24/11/2021
Judgment/order uploaded on 24/11/2021
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