Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CS No.236/2019.
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.236 OF 2019
IN
SUIT NO.9773 OF 1982
1] Apurva Ajay Doshi
2] Asha Kirit Shah
3] Ajit Ramniklal Doshi
4] T. Maneck & Co. ..Applicants
In the matter between :
1] Apurva Ajay Doshi
2] Asha Kirit Shah
3] Ajit Ramniklal Doshi
4] T. Maneck & Co. ...Org. Defendant Nos.1(a),1(b),2(a), 6 & 7
Versus
1. New Sagar Darshan Coop. Hsg. Soc. Ltd. … Org. Plaintiff
2. Sudha Dushyant Shah ...Org. Defendant No.8
3. Krantikumar Durlabh ...Org. Defendant No.9
4. Bhogilal Mulchand Shah ...Org. Defendant No.10
5. Sushila Lalit Gandhi ...Org. Defendant No.11
6. Mahendra Rasiklal Kamdar ...Org. Defendant No.12
7. Minal Rohit Shah ...Org. Defendant No.14(a)
8. Rohit V. Shah ...Org. Defendant No.16
Mr. Zubin Dalal, advocate for plaintiff.
Mr. Sasidharan, advocate for defendant Nos.1(a),1(b),2(a),6 & 7.
Mr. S. R. Tejpal, advocate for defendant Nos.14(a) and 16.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 08th February, 2019
-- 1 of 5 --
:2: CS No.236/2019.
O R A L O R D E R
Chamber Summons is taken out by defendant Nos.1(a), 1(b),
2(a), 6 and 7, to incorporate averments as per Paragraph Nos.57A to
57G as per schedule attached to chamber summons.
2. It is the contention of above referred defendants that proposed
amendments have been necessitated on account of death of original
partner of defendant No.7 and advise received by these defendants from
their Counsel. It is contended that proposed amendments are
necessary for effectual adjudication of real controversy in issue in
present case. Delay if any, caused in filing chamber summons is not
deliberate and no prejudice will be caused to the plaintiff, if the
proposed amendments are allowed. Accordingly, it is prayed that
Chamber summons be allowed.
3. Plaintiffs vide reply affidavit opposed the chamber summons
mainly on the ground that in proposed amendments, the defendants are
seeking to introduce a completely different and new case which is
inconsistent with the stands of these defendants taken in written
statement. The amendments proposed are not necessary for the purpose
of determining the questions in controversies between the parties in the
suit. It is further contended that application for leave to amend written
statement is being made after more than 35 years of filing written
statement and after recording of evidence in the suit has commenced
and evidence on behalf of plaintiff has been completed. Accordingly, it
is prayed that chamber summons be dismissed.
4. Heard respective Counsels for parties.
5. Ld. Adv. for above referred defendants submitted that principle
governing amendment of written statement are more liberal than that
of amendment of plaint. In support of his submission, he placed
-- 2 of 5 --
:3: CS No.236/2019.
reliance upon authorities in the cases of Pradeep Singhvi and another
Vs. Heero Dhankani and others, (2004) 13 Supreme Court Cases
432, (2) State Bank of Hyderabad Vs. Town Municipal Council,
(2007) 1 Supreme Court Cases 765. He urged to allow the chamber
summons.
6. On the other hand, the Ld. Adv. for plaintiff reiterated in his
submission contents made in reply affidavit to chamber summons. He
placed reliance upon the authorities in the cases of Haji Mohammed
Ishaq Wd. S.K. Mohammed and others Vs. Mohamad Iqbal and
Mohamed Ali and Co. (1978) 2 Supreme Court Cases 493 and
Revajeetu Builders and Developers Vs. Narayanaswamy and Sons
and others, (2009) 10 Supreme Court Cases 84. He submitted that
the chamber summons be dismissed.
7. I have gone through the chamber summons, affidavit in support
of it, reply to it and written statement of defendant Nos.1 to 7. I have
carefully considered rival submissions of Ld. Adv. for parties. At the
outset, I would like to point out that in view of judgment in the case of
State Bank of Hyderabad, cited supra, it is no more res integra that
proviso to Order VI Rule 17 of Code of Civil Procedure shall not apply
to the suit which are filed before the Amendment Act, 2002. In present
case, the suit has been filed in the year 1982, so proviso to Order VI
Rule 17 of the Code shall not apply. Therefore, objection of plaintiffs
to the amendment in the light of proviso to Order VI Rule 17 is not
sustainable.
8. I have gone through the principles laid down by Hon'ble Apex
Court pertaining to amendment of pleading in the cited authorities. In
light of same, now I consider proposed amendment taken out by way of
chamber summons. I have gone through proposed amendment as
shown in schedule. No doubt, certain proposed amendments are by way
-- 3 of 5 --
:4: CS No.236/2019.
of elaboration of pleadings already raised in written statement. But,
while making certain elaboration, these defendants want to make
deviation from the pleadings made in the written statement on certain
aspects, particularly, in relation to defendant No.7 could only be made
nominal member and introduce new case about status of original
vendor. These defendants Nos.1 to 7 have already made elaborate
pleadings in their written statement. In my view, proposed
amendments are not necessary for just decision of controversies in the
suit. Therefore, I am not inclined to allow chamber summons. Hence, I
pass the following order :
ORDER
Chamber Summons No.236/2019 is dismissed and accordingly, stands
disposed off.
(M. T. Asim)
Judge
Date : 08.02.2019 Gr. Bombay
Transcribed on : 08/02/2019.
HHJ Signed on :
-- 4 of 5 --
:5: CS No.236/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12.02.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S.U. Manjrekar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
08.02.2019
JUDGMENT/ORDER signed by P.O.
on
11.02.2019
JUDGMENT/ORDER uploaded on 12.02.2019
-- 5 of 5 --