Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.154/19 1 Suit No.1609/15
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.154/2019
IN
S.C SUIT NO.1609/2015
Mr. Anthony Clowdin Pereira .. Plaintiff
V/s.
Mr. Evarist Clowdin Pereira ..Defendant
Appearance :
Adv. Ms. Shilpa Morje for plaintiff.
Adv. Mr. Rahul Singh for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 29.7.2019.
ORAL ORDER
1. This chamber summons (C/S) is taken out by plaintiff for
carrying out amendment in the plaint in respect of premises/suit shop
and for annexing the sanction plan issued by BMC in that regard and to
be marked as Exh.M along with the plaint.
2. The plaintiff is also seeking consequential amendment in
para 15(a) of the plaint. The chamber summons is supported by an
affidavit and documents including photocopy of sanction plan.
3. The defendant has opposed the chamber summons by filing
affidavit in reply. Seen and considered the same. I have heard Ld.
Counsels for plaintiff and the defendant.
4. Ld. Counsel for the plaintiff submitted that, the proposed
amendment in the plaint and addition of Exh.M in the form of sanction
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C/S No.154/19 2 Suit No.1609/15
plan has become necessary for proper adjudication of the suit claim.
Further it is submitted that, consequential amendment in para 15(a) of
the plaint is also necessary and the proposed amendment in the said
paragraph is incorporated in the affidavit amending the first and second
schedule respectively.
5. Ld Counsel for the defendant has strongly opposed the
chamber summons and submitted that the proposed amendment
addition of the sanction plan in the plaint is not permissible under
Order 6 Rule17 of CPC, which reflect that,
'the court may at any stage of proceedings may 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 question 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 have raised the
matter before commencement of trial.'
6. Ld. Counsel for the defendant further argued that, on
15.12.2016, Ld. Counsel for the plaintiff had submitted evidence
affidavit alongwith list of documents. Thus trial of the case has
commenced. Reliance is placed on the online copy of Roznama dated
15.12.2016 vide Ex.A along with affidavit in reply. It appears that, as
per Roznama dated 15.12.2016 after evidence affidavit was filed by the
plaintiff in the afternoon, Ld Counsel for the defendant tendered
original N/M No.3630/16 along with affidavit and the matter was
adjourned. The said notice of motion has been decided by this Court on
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C/S No.154/19 3 Suit No.1609/15
14.9.2018 and WS of the defendant was taken on record subject to cost
of Rs.2,000/. Thus, admittedly, as per Exh.3, evidence affidavit of the
plaintiff was filed along with documents vide Exhs.4 and 5, but actual
trial is yet to commence, only technically the plaintiff has led evidence
in the case.
7. Considering the submissions made before the Court and
after perusal of the Chamber Summons along with affidavit of the
plaintiff, I am of the opinion that, the amendment sought and
production of the sanction plan is essential before the court for proper
adjudication in the suit claim. No doubt there has been delay in
production of the said sanction plan on record and for seeking
amendment, however the defendant has also not filed his WS within
time and his action also suffers from latches. Therefore rule of equity
demands that the plaintiff should also be given an opportunity to carry
out amendment as prayed for as no prejudice will be caused to the
defendant because cross examination of PW1 is yet to begin and
defendant shall be entitled to carry out consequential amendment in the
WS, if any, and thereafter crossexamine PW1 Anthony during trial of
the case. So far as the aspect of delay is concerned, if suitable cost is
imposed on the plaintiff that will serve the purpose. Hence, I proceed
to pass following order:
ORDER
1. Chamber Summons No.154/2019 is hereby
allowed subject to cost of Rs.1,000/ to be
deposited or paid by the plaintiff to the defendant
within two weeks from today as a condition
precedent.
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C/S No.154/19 4 Suit No.1609/15
2. If the plaintiff deposits or pays the cost, as
directed above, the plaintiff shall carry out the
amendment within 14 days thereafter.
3. In view of amendment in the plaint by the
plaintiff, the defendant shall also be at liberty to
amend W.S. by making a consequential
amendment, if any, within two weeks thereafter.
4. Ld. Counsels for the parties shall submit amended
copies of Plaint/ Written Statement respectively
after amendments are carried out as per
procedure.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 29.7.2019 Gr. Bombay (C.R. 03)
Dictated on : 29.7.2019
Typed on : 30.7.2019
Signed by HHJ on : 31.7.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :31.7.19
TIME: 3.30 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 29.7.19
Judgment/ order signed by P.O on 31.7.19
Judgment/ order uploaded on 31.7.19
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