Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C.S. No.150 of 2019
CNR:MHCC01-000842-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.150 OF 2019
IN
L.C. SUIT NO.1789 OF 2010
Rauf Amiruddin Shaikh .. Plaintiff
V/s.
Municipal Corporation of Gr.
Mumbai & Ors. .. Defendants
Appearance:-
Adv. G. B. Naik for plaintiff.
Adv. Rawade for defendant No.1 to 3/MCGM.
None for defendant No.4.
Adv. R.C. Dhuru for defendant No.5.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 15/01/2024.
ORDER
This Chamber Summons is taken out by the plaintiff to
carry out amendment in the plaint.
2 Perused affidavit in support of the Chamber Summons and
reply. Heard both sides.
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2 C.S. No.150 of 2019
3 By way of proposed amendment, the plaintiff wants to
incorporate the pleadings by way of para 1(A) and 1(B) and prayer
clause in the suit by way of clause a (i) by way of declaration for
entitlement of possession and in terms of prayer clause a(ii) for
directing the defendant no.5 to pay monthly compensation until the
possession of the suit premises is handed over to the plaintiff.
4 During the course of arguments, the Ld. Adv. for the
plaintiff submitted that the original tenanted premises has been
redeveloped, therefore, after getting knowledge of this fact the plaintiff
has taken out this Chamber Summons. The plaintiff himself has
contended in the plaint that he is not in possession of the suit premises.
The Ld. Adv. for the plaintiff placed reliance on Kamal Singh Vs. Joint
Commissioner AIROnline 2023 P and H 1022.
5 On the other hand, Ld. Adv. for the defendant no.5,
submitted that the suit tenement was already transferred to the
defendant no.5 by the principal tenant on the date of filing of the suit in
the year 2010. The plaintiff never challenged the development process
at any point of time. The plaintiff cannot ask for the right merely
because he is the relative of the husband of principal tenant. The
defendant no.4 has specifically pleaded several facts in his written
statement. The reliefs are sought in the suit without challenging the
transfer which has been made in favour of defendant no.5. Moreover,
Alok construction is not made as a party to the suit. The proposed
amendment changing the cause of action. Without challenging the title
of the defendant no. 5, how the plaintiff can claim possession. There is
bar of order II Rule 2 and 3 of the Code of Civil Procedure for claiming
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3 C.S. No.150 of 2019
the reliefs which were omitted to sue. The Ld. Adv. for the defendant
no.5 placed reliance on Bharat Coking Coal Ltd. Vs. Raj Kishore Singh
and Anr. (2006) 9 Supreme Court cases 174, Bharat Karsondas Thakkar
Vs. Kiran Construction Co. and Ors. 2008 DGLS (SC) 548, State of AP
and Ors. Vs. Pioneer Builders AP (2006) 12 Supreme Court cases 119.
6 Considering the submissions of both sides, I have also gone
through the ratio and observations laid down in the cases law cited
supra from both sides. Considering the prayer in the suit, it reveals that
the plaintiff has sought to direct the defendant no.1 to 3 to evict the
defendant no.5 by directing the defendants to transfer the tenancy of
room no. 27, BIT chawl No. 12, First Floor, Agripada along with the
relief of permanent injunction. Now, proposed amendment has been
sought on the ground that the process of redevelopment of the original
tenanted premises came in the knowledge of the plaintiff during
pendency of the suit. Therefore, considering the proposed amendment
which appears to be for seeking the relief of declaration by way of
entitlement of the plaintiff to the possession of the newly allotted flat
No. 901, 9th floor, in Sunshine Co-Op. Housing society, it is connected
with the old tenanted premises. So far as the question of limitation is
concerned, same can be determined on merit by framing issue of
limitation. However, important thing is that the trial in the suit is yet to
be commenced. In fact, considering the ratio laid down in the case laws,
in my view, proposed amendment does not change the nature of the suit
and the same is necessary to decide the controversy. The defendants will
have an opportunity to file additional written statement, if any, towards
the proposed amendment. Therefore, in view of these reasons, Chamber
Summons deserves to be allowed.
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4 C.S. No.150 of 2019
ORDER
1. Chamber summons No.150 of 2019 is allowed in terms of
prayer clause (b).
2. The plaintiff is directed to comply the order within 14 days
from the date of this order.
3. Chamber summons stands disposed off accordingly.
Date:15/01/2024. ( R. M. Mishra )
Dictated on :15/01/2024. Judge, City Civil Court,
Typed on :16/01/2024. Gr.Mumbai.
Signed on :16/01/2024.
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5 C.S. No.150 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/01/2024. 02.55 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
15/01/2024.
JUDGMENT/ORDER signed by P.O.on 16/01/2024.
JUDGMENT/ORDER uploaded on 16/01/2024.
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