Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/s. 174/18
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
Chamber Summons No. 174 of 2018
In
S.C. Suit No. 481 of 2010
1. Mr. Sanjay Vishnu Phale & Anr. ...Plaintiffs.
V/s.
2. Shri Sharadchandra Vishnu Phale & Anr. ...Defendants.
Appearances: Ld. Adv. Jayesh S. Kalanke for the plaintiff.
Ld. Adv. Anisha Narayanan for defendant No.2
Ld. Adv. Mr. Devdatta B. Salvi for defendant No.1
Coram : D.K. Gudadhe, Adhoc Judge.
(C.R.No. 12)
Dated: 26th September, 2018
Order
1. This chamber summons has been taken out by the
plaintiffs to make amendment in the pleadings. The facts of the
plaintiff's case in short are as under.
2. According to the plaintiffs, they have filed the suit for
injunction to restrain the defendants from not disposing or interfering
with the investment made by deceased Vishnu Phale and Shantabai
Phale, soalso in respect of household property without adopting due
process of law. However, the defendants vide their written statement
challenges the plaintiff's status as a heir of said deceased and
therefore, prayed for amendment in the pleadings and particularly
that too in prayer clause that plaintiff No. 2 be declared as daughter of
deceased (name not mentioned) and she is entitle for her share in the
suit property. Further, according to her, the amendment is not going
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to have effect of introducing a new case or cause of action, but has an
additional approach to the same facts in the manner of claiming
reliefs.
3. Defendant No. 1 opposed the application on a ground that
the present chamber summons is taken at the stage of final argument
of the matter and with sole aim to protract the matter. Furthermore,
the earlier chamber summons NO. 909/2014, which was for the same
purpose also came to be rejected by this Court. Therefore, there is no
point in taking out the second chamber summons. According to the
defendants, chamber summons deserves to be rejected.
4. On these rival contentions of the parties, the points that
arise for determination are as follows. I have given my findings
thereon for the reasons mentioned in the subsequent paras.
Sr.No. POINTS FINDINGS
1. Whether the proposed amendment is just
necessary for the purpose of determining
real question in controversy between the
parties ?
No.
2. What order? As per final order.
Reasons:
As to Point No.1:
5. From the tenor of the plaint as well as prayer clause, it is
seen that the plaintiff's suit is simply for the purpose of injunction.
Now, the plaintiffs want to amend the plaint in order to prayed for
declaration that the plaintiff No. 2 is also heir of deceased Vishnu Phale
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and Shantabai Phale. The plaintiffs want to make this amendment
because their status came to be denied in the written statement. But,
such denial cannot give right to the plaintiff to make amendment.
Apart from this, what is required to be seen is the scope of Order VI
Rule 17 of CPC which reads thus,
“Amendment of pleadings The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for this purpose
of determining the real question in controversy between the
parties.
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of the trial”
6. So, it is seen that the amendment can be made in the
pleadings at any time at any stage. However, the said amendment
cannot be permitted after commencement of the trial unless the court
comes to the conclusion that in spite of due diligence, the party could
not have raised the matter before the commencement of the trial.
7. If we inspect the plaintiff's chamber summons, it nowhere
seen that the plaintiff was not aware particular facts i.e. denial of her
title before commencement of the trial in spite of due diligence. On the
contrary, it is seen that the plaintiff was well aware of this fact before
commencement of the trial. Nay record shows that similar type of relief
was sought vide chambers summons No. 909/2014 and same came to
be rejected. Even according to the defendants the Hon'ble High Court
did not interfere in the said order. So, it can say that the said order
reached to it finality. Therefore, the plaintiff cannot again take out this
chamber summons.
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8. Thus, considering all these facts, the amendment is prayed
for in the plaint is not at all necessary. Hence, I answer this point in
negative.
As to Point No. 2 :
9. In view of my findings to the above point and reasons for
the same, I hold that chamber summons deserves to be rejected.
Accordingly, I answer to this point and proceed to pass order in
following terms:
Order
1. Chamber Summons No. 174 of 2018 is hereby rejected.
2. Accordingly, Chamber Summons No. 174 of 2018 is disposed of.
(D.K. Gudadhe)
Adhoc Judge,
26.09.2018 City Civil Court, Gr. Bombay.
Dictated on : 26.09.2018
Transcribed on : 29.09.2018
Signed on : 06.10.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 06.10.2018 5.00 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
26.09.2018
JUDGMENT /ORDER signed by P.O. on 06.10.2018 (order
reuploaded on 12.12.2019 as
per order of correction)
JUDGMENT /ORDER uploaded on 12.12.2019
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