Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ord. In Ch/s no 174 of 2020, in Suit no.4522018
MHCC010012332020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.174 OF 2020
IN
SUIT NO.452 OF 2018
Mr. Gustad Rashid Irani. ..Plaintiff.
V/s
Mrs. Bai Purbai Damji Shah & Ors. ..Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 9th DAY OF JANUARY, 2023.
: Appearances:
The learned Adv. Mr. Mandgaonkar for the plaintiff.
The learned Adv. Mr. Joshi for defendant Nos.1 to 4.
ORAL ORDER
The plaintiff has taken out the present Chamber Summons for
seeking an amendment in the plaint as per schedule annexed thereto.
2. It is contention of the plaintiff that defendant Nos.1 to 4
and defendant No.5 have filed their respective written statement
wherein they are claiming that defendant Nos.1 to 4 were in
possession and thereafter they handed over possession to defendant
No.5. It is contended that suit property had never been handed over
to deceased purchaser and hence defendant No.1 to 4 can neither
claim to be in possession of suit property nor it could have given the
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2 Ord. In Ch/s no 174 of 2020, in Suit no.4522018
same to defendant No.5. By way of present Chamber Summons the
plaintiff wants to highlights some clauses of the agreement and
further wants to claim relief of permanent injunction i.e., his
possession should not be disturbed by defendants.
3. Defendant Nos.1 to 4 strongly opposed Chamber
Summons by filing reply on affidavit. It is contended that Chamber
Summons taken out by the plaintiff being false and frivolous is not
maintainable and is liable to be rejected.
4. It is further contended that the suit as filed by the
plaintiff for seeking a declaration is not maintainable. It is further
contended that Chamber Summons is nothing but reproduction of
clauses which is already part and parcel of the plaint. Under the grab
of amendment the plaintiff wants to change entire case as pleaded in
the plaint. If amendment is allowed then definitely it would cause
prejudice to defendants. Hence Chamber Summons may kindly be
rejected.
5. Heard both learned advocates for respective parties for
considerable period of time. Perused the record.
6. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the plaintiff is entitled to
claim relief as sought in Chamber
Summons?
Yes
2. What order ? As per final order.
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REASONS
AS TO POINT NO.1:
7. It is well settled that, the amendment of pleadings to pre
trial should normally to be more liberally allowed than amendment
sought after commencement of the trial. It is submitted that yet trial
has not commenced.
The Hon'ble Supreme Court in the case of Sampath
Kumar Vs. Ayyakannu and Another (2002) 7 Supreme Court
Cases 559 held that, “in order to avoid multiplicity of the suit
amendment should be allowed”.
8. Herein it is to be noted that by way of amendment the
plaintiff wants to clarify some clauses of the agreement and to claim
relief of permanent injunction whereby he wants to restrain
defendants from dispossessing him from suit premises. This suit is at
the initial stage. Defendants can contest same by filling additional
written statement. By allowing the amendment it will neither change
the nature of suit nor causes any prejudice to defendants. Therefore
the plaintiff has made out a case for allowing Chamber Summons.
Hence my answer to Point No.1 is in affirmative.
AS TO POINT NO.2:
9. In view of my above discussion, I pass following order.
ORDER
Chamber Summons No.174/2020 stands allowed and
made absolute in terms of prayer clause(a).
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4 Ord. In Ch/s no 174 of 2020, in Suit no.4522018
2. Plaintiff to carry out amendment within 14 days.
3. Chamber Summons stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 09.01.2023 (C.R. No.1)
Dictated on : 09.01.2023
Transcribed on : 10.01.2023
checked and Signed on : 10.01.2023
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5 Ord. In Ch/s no 174 of 2020, in Suit no.4522018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 10.01.2023 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME:5.30 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 09.01.2023
JUDGMENT/ORDER signed by P.O. on 10.01.2023
JUDGEMENT/ORDER uploaded on 10.01.2023
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