Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.110/20 (LCS 70/13)
MHCC010008592020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
CHAMBER SUMMONS No.110 OF 2020
IN
LONG CAUSE SUIT No.70/2013
Fazloo Rehman Kazi … Plaintiff
Versus
Municipal Corporation of
Greater Bombay ... Defendant
Appearance :
Mr. Viren Tripathi h/f. Ms. N. T. Lad, Advocates for plaintiff.
Mrs. Mhatre, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL
COURT, COURT ROOM NO.4.
DATED : 28/04/2023.
O R D E R
. The plaintiff has taken out this Chamber Summons under
OrderVI Rule17 of The Code of Civil Procedure (in short the C.P.C.)
for permission to amend the plaint.
2] It is case of the plaintiff that evidence of the parties has
been completed and suit was fixed for arguments on 21/1/2020.
However, on 16/1/2020 defendant put up a wire fencing in front of suit
premises thereby obstructing egress and ingress of the plaintiff and the
-- 1 of 4 --
2 C/S. No.110/20 (LCS 70/13)
plaintiff is seeking permission to incorporate contention about
subsequent event. It is further stated that the proposed amendment is
just and necessary for complete and effective adjudication of dispute.
Therefore, in order to decide the real controversy between the parties
and in order to avoid multiplicity of proceeding the plaintiff be
permitted to amend the plaint.
3] Defendant No.1/M.C.G.M. opposed Chamber Summons
stating that Chamber Summons is not maintainable. The proposed
amendment will change nature of suit. Hence it is prayed that Chamber
Summons be rejected.
4] Perused Chamber Summons, affidavit in support thereto,
reply, record and proceeding. Heard learned advocate for the parties.
5] The principle governing amendment of pleadings are well
settled. OrderVII Rule17 of the C.P.C. deals with amendment of
pleadings and provides that 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.
6] The present suit is filed for permanent injunction
restraining defendant/Corporation from demolishing notice structure
without following due process of law. Thus, subjectmatter of suit is
whether the plaintiff is entitled for perpetual injunction restraining
defendant/Corporation from demolishing notice structure without due
process of law. By way of proposed amendment the plaintiff is seeking
relief of mandatory injunction directing defendant/Corporation to
-- 2 of 4 --
3 C/S. No.110/20 (LCS 70/13)
remove wire fencing. Learned advocate for the plaintiff submitted that
the proposed amendment is just and necessary for complete, effective
and proper adjudication of suit. However, the present suit is for
perpetual injunction restraining defendant/Corporation from
demolishing structure without following due process of law and by way
of proposed amendment the plaintiff is seeking relief of mandatory
injunction directing defendant/Corporation to remove wire fencing. By
way of proposed amendment, the plaintiff is seeking relief of mandatory
injunction and on the basis of separate cause of action alleged to be
arose during pendency of suit. This clearly shows that proposed
amendment is not just and necessary for adjudication of controversy
involved in suit. The proposed amendment is in respect of putting of
fencing and for that purpose a fresh cause of action arose to the
plaintiff. I am of the opinion that proposed amendment is not just and
necessary for deciding controversy between the parties and if proposed
amendment is allowed certainly it will change the nature of suit. Hence
I find no substance in the contention of learned advocate for the
plaintiff that the proposed amendment is just and necessary for
complete and effective adjudication of suit. The suit is of 2013 i.e. 10
years old and it is at the stage of final arguments. If the proposed
amendment is allowed certainly there will be change in nature of suit.
Therefore, Chamber Summons deserves to be dismissed. Hence I pass
following order :
O R D E R
Chamber Summons No.110/2020 is dismissed.
Date : 28/04/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
-- 3 of 4 --
4 C/S. No.110/20 (LCS 70/13)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
06/05/2023 02:50 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 28/04/2023
ORDER Typed on 04/05/2023
ORDER signed by P.O. on 06/05/2023
ORDER uploaded on 06/05/2023
-- 4 of 4 --