Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.124 OF 2018
IN
SUIT NO.5872 OF 2005
JASHVANT MANSUKHLAL SHAH ...Applicant/OrgPlaintiff.
JASHVANTLAL MANSUKLAL SHAH ...Plaintiff.
V/s.
ESTATE OF LATE R.V.RAHEJA & ORS. ...Defendants.
Appearances:
Ld. Adv Mr.Shashi Jain for plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.14)
DATED : 27th April,2018
ORDER
By way of this chamber summons applicant/plaintiff prayed that
extension of time for carrying out the amendment as per order
dt.28.08.2015 by condoning the delay and also for directions to the
concerned department for correcting the name of plaintiff in the
certificate of refund.
2. In supporting affidavit to the chamber summons of Mr.Amol
Shah, the Constituted Attorney of applicant/plaintiff, submitted that,
original plaintiff have filed suits against defendants. Out of which some
suits were arrived at amicable settlement and came to be disposed of by
order dt.14.02.2013. When plaintiff applied for refund of the Court fee
MHCC01-001022-2018
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CS 124/2018 .. 2 .. Suit No.5872/2005
as per rules, it came to their knowledge that name of plaintiff
inadvertently had been spelt wrongly in the plaint and that fact was
highlighted when refund certificate issued to plaintiff by Board
Department. Therefore, they have taken out Chamber Summons
No.1064 of 2014, which was allowed by this Court on 28.08.2015. But
inadvertently when the Clerk of the Advocate contacted Board
Department, it was pointed that amendment is not carried out in the
title clause of the plaint for making correction in the refund certificate.
Therefore, that intimation of the Clerk forced this applicant to file this
chamber summons and prayed extension of time to carry out the
amendment in view of the order dt.28.08.2015 by condoning the delay
and also concerned department of this Court be directed to correct the
name of plaintiff in the refund certificate.
3. Service of this chamber summons came to be served upon
defendants. However, as per service affidavit defendant No.1 refused
to accept the R.P.A.D. envelope returned back of defendant No.1 and
accepted by defendant No.2. But none appeared for them and
therefore, chamber summons proceeded without reply and remains to
be undefended.
4. Heard learned Adv.Shashi Jain for plaintiff. Perused the
submissions on record.
5. With supporting affidavit, the affidavit of Clerk of the Counsel
was also filed on record, mentioning the fact about directions of Board
Department to carry out amendment in the title clause of plaint when
noticed after return of certificate of refund by the concerned
department when submitted for encashment. Therefore, they
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immediately rushed to this Court to carry out the amendment. The
delay of definitely more than three years is occurred, which is
reasonably and explained by plaintiff, as they are under impression that
being matters are settled, out of which in many matters they have
encashed the refund certificate and only seven matters are remained to
be encashed due to technical mistake of spelling of plaintiff. It is
inadvertently made during the course of typing and remains to be
corrected due to oversite.
6. Therefore, the reasons put forth by plaintiff is just and proper. It
will not cause prejudice to the other side as matter was already
amicably settled. If plaintiff is permitted to condone the delay and to
carry out the said amendments, it will definitely help them to get the
refund of Court fee and also settle the technical objection which was
cropped up after disposal of the suit. In such circumstances, chamber
summons needs to be made absolute as prayed. No change of nature of
suit not it will cause prejudice. On the other hand for proper
adjudication of the matter and to determine the question proposed
amendment as sought is necessary. Due diligence is shown. Question
of bar of commencement of trial will not arise. Therefore, by directing
plaintiff/applicant to bear their costs, I proceed to pass the following
order :
O R D E R
1. Chamber Summons No.124 of 2018 is made absolute.
2. Plaintiff is permitted to carry out the amendment in the
title clause of the plaint in the plaintiff's name as prayed,
within two weeks from this order by condonation of delay.
3. Concerned department of this Court is directed to issue
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certificate of refund in the corrected name of plaintiff after
compliance of amendment.
4. Applicant/plaintiff to bear the costs of chamber summons.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.14)
Dt.:27/04/2018 City Civil Court, Gr. Mumbai
Dictated on : 27.04.2018
Transcribed on : 27.04.2018
Signed on : 27.04.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
27.04.2018 at 5.34 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.14)
Date of pronouncement of judgment/order 27.04.2018
Judgment/order signed by P.O. on 27.04.2018
Judgment/order uploaded on 27.04.2018
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