Date: 28-01-2020
Business: Adv. Megha Gupta for plaintiff present and tendered registered NM No.398 of 2020.
Adv. Anita Chikne for defendant present and tendered reply to NM No.398 of 2020.
Copy is given to other side.
Heard both sides on NM No.398 of 2020.
Adjourned for order to 29.01.2020
Next Purpose: NM ORDERS
Next Hearing Date: 29-01-2020
Date: 29-01-2020
Business: Plaintiff present.
Adv. Megha Gupta for plaintiff present.
Order passed below Notice of Motion No.398 of 2020
Perused notice of motion, affidavit in support of it, reply of defendant, chamber summons No.1876 of 2019 and affidavit in support of it. Heard respective counsel for parties.
Notice of motion is taken out by applicants/plaintiffs to allow them to verify affidavit in support of chamber summons No.1876 of 2019 and to grant any further relief as this Court deems feet and proper.
It is the contention of applicants that they have taken out chamber summons No.1876 of 2019 seeking amendment of the suit and other relief mentioned therein. An objection was taken by the respondent that it was not duly verified. Therefore, present notice of motion is taken out to remove technical objection more particularly verification of affidavit in support of said chamber summons which was inadvertently not included. Accordingly, applicants have prayed to permit them to cure said defect.
Defendant opposed notice of motion on the ground that it is in breach of guidelines laid down in Rule 187 of the Bombay City Civil and Sessions Courts Rules, 1948. More so, it is not as per the Form No. VIII laid down in said Rule. It is further contended that applicants are in habit of filing of such affidavits without verification clause which lead to unnecessarily delay and dragging of suit. Accordingly, defendant prayed for dismissal of notice of motion.
Learned advocate for applicants placed reliance upon authorities in the cases of H. D. Revanna Vs. G. Puttaswamy Gowda and others - (1999) 2 SCC 217, Dayabhai Girdhardas Vs. Bobaji Dahyaji Kotwal and others - 1953 Indian Law Reports 188 and Kailash Singh Vs. Hiralal Dey (1993) 1 Gauhati Law Reports 434 in support of his submission.
In the case H. D. Revanna (cited supra), it is held that Defecting verification of election petition or the affidavit accompanying the election petition as curable and not fatal. In the case of Dayabhai (cited supra) it is held that, Failure to sign the plaint properly was merely a formal defect it was not serious defect which went to the root of the matter and vitiate the institution of the suit. the defect could be cured at any stage on a proper application being made for the purpose. In the case of Kailash Singh (cited supra) it is laid down that, Provision of Order 6 Rule 15 of CPC are not mandatory, but directory in nature and it is further held that, any defect can be cured at any stage.
In view of above legal position now I consider present notice of motion. So far as objection of defecting about format of notice of motion is concerned it is not in deviation on material aspects therefore I do not find merits in contention of defendant in that regard. It is true that affidavit filed in support of chamber summons No.1876 of 2019 does not have content relating to verification and affirmation as per Form No. I provided under the Bombay City Civil and Sessions Courts Rule, 1948. In my view, it is formal defect and can be cured. It does not go to the roots of the matter. Therefore, relying on authorities cited supra I am inclined to allow present notice of motion. Hence, pass following order
ORDER
1.Notice of Motion No.398 of 2020 is allowed and made absolute in terms of prayer clause (a).
2.Applicants/Plaintiffs to make compliance by incorporating verification clause to the affidavit in support of chamber summons and verifying the same in presence of concerned official of the Court within period of two weeks from the date of this order.
3.Accordingly, notice of motion is disposed off.
Adjourned for compliance to 28.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 29-01-2020