Final Order 1

Order Details: Other
Pdf Text: 29.01.2020
SU 8116/94
@ NM
398/20
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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
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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.
Judge
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