Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 26019
CNR No. MHCC010013522019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.260 OF 2019
IN
SUIT NO.7546 OF 1981
(HIGH COURT SUIT NO.729 OF 1981)
Manjula Jamnadas Choksi & Ors. ...Plaintiffs.
V/s.
Dinesh Purshottam Laljee & Ors. ...Defendants.
Appearances:
Ld. Adv Mr. Ajay Panicker for plaintiffs
Ld. Adv Mr. Mannadiar for defendant no.4.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 02nd MAY, 2019
ORDER
1. This is chamber summons taken by plaintiff for amendment in
plaint as per schedule.
In short, case of the plaintiffs is that:
2. Plaintiffs have filed suit for specific performance of agreement
dated 11.12.1973. Defendants admitted execution of agreement but
they have claimed that plaintiff had not performed their part.
3. By way of chamber summons intend to brought on record
subsequent facts of deemed conveyance of Society A and Society B. The
plaintiff also intend to brought on record that plaintiff firm offered two
flats admeasuring 615 sq. ft. each aggregating 1230 sq. ft., against the
-- 1 of 8 --
2 CS 26019
flat of 750 sq. ft. at a concessional rate of Rs.70/ per sq. ft., in full and
final settlement of all the claims of the vendors including land value.
The plaintiff firm thus earmarked two flats nos.301 and 302 in the A
Wing of Jamuna Darshan Building No.1. The defendant obtained the
keys of the said flats for showing the said flats to the prospective
purchasers, under the order dated 02.07.208 passed in Notice of Motion
No.2220 of 2007 in the A Society's Suit No.3938 of 2001. In
compliance of the said order, plaintiffs handed over the keys of the said
Flat nos.301 and 302 to the Advocate for defendants. Thereafter,
defendants fraudulently sold the said flats to the Chairman of defendant
society and his wife. The plaintiffs filed Suit No.845 of 2013 in the
Hon'ble Bombay High Court for restoration possession of the Suit Flat
Nos.301 and 302.
4. Plaintiff's contention is that this amendment is necessary due to
subsequent events and if chamber summons is allowed, it will not
change the nature of suit nor the relief. Amendment will not cause
prejudice to the defendant. It further contended that the plaintiff
application i.e., Notice of Motion No.2237 of 2015 taken out by the
plaintiffs in their connected Suit No.845 of 2013 pending in the Hon'ble
Bombay High Court for transfer of the present suit in the Hon'ble
Bombay High Court and try both the suits together and the plaintiff
waited for the said decision on the said notice of motion. In the
meantime, the records and proceedings in the present suit was called
for by the Hon'ble Bombay High Court under order dated 21.03.2016.
Later on the Hon'ble Bombay High Court by further order dated
08.12.2016 directed for retaining photocopy of the present suit and
return the records to this Court. Thereafter, the plaintiffs proceeded
with the hearing of th present suit and their Notice of Motion No.57 of
-- 2 of 8 --
3 CS 26019
2017 for setting aside the order of closing the evidence of the plaintiff
was allowed vide order dated 10.08.2017. Plaintiff's Notice of Motion
No.3274 of 2015 for leading secondary evidence was allowed by order
dated 23.04.2018. Thereafter, after the death of defendant no.5,
plaintiff's Chamber Summons No.1901 of 2017 for bringing legal heirs
on record was allowed on 23.07.2018 so, the plaintiff has taken out the
chamber summons to bring subsequent events on record.
5. Defendant no.4 filed reply and objected chamber summons. His
contention is that chamber summons is false and frivolous lack of
bonafides. It further contended that trial in the suit has already
commenced. Plaintiffs have filed affidavit of evidence on 26.08.2013
and additional affidavit of evidence on 27.03.2015. The attempt by the
plaintiff to delay and prevented by an order dated 02.07.2015 closing
the evidence of the plaintiffs, which was subsequently set aside on
payment of costs. The order dated 10.08.2017 passed by this Court
clearly stipulates the trial is to be expedited and the matter placed on
each week for direction. The amendment application therefore, not
maintainable as it has been made after the commencement of the trial.
It further contended that alleged events which are brought on record
are events in the month of November, 2015 and plaintiff has not filed
chamber summons for amendment in the year 2015. It further
contended that plaintiffs have initiated several other proceedings to
stall the progress of the matter which has been specifically expedited.
With this, prayed for dismissal of chamber summons.
6. Plaintiff no.1(d) filed rejoinder and denied the allegations made
in their reply. Defendant no.4 filed sur rejoinder.
-- 3 of 8 --
4 CS 26019
7. I have heard Advocate for both the parties.
8. Advocate for plaintiffs submitted that plaintiff's suit is of 1981 so,
proviso of Order 6 Rule 17 of the Code of Civil Procedure, is not
applicable in the present case. He further submitted that the plaintiff
want to bring subsequent events by way of amendment so, amendment
ought to have been allowed. He further submitted that as the
proceedings was called by the Hon'ble High Court and he had taken
other proceedings, he could not file chamber summons for amending
plaint to bring subsequent events on record. He further submitted that
there is no malafide on the part of the plaintiffs so, chamber summons
be allowed. Advocate for plaintiffs relied upon State Bank of
Hyderabad V/s. Town Municipal Council, (2007) 1 SCC 765.
9. Advocate for defendant submitted that alleged subsequent events
happened in the year 2015 and chamber summons is taken in the year
2019, it clearly shows that lack of bonafide on the part of the plaintiffs.
He further submitted that as per proviso of Order 6 Rule 17 of the Code
of Civil Procedure after commencement of trial, amendment cannot be
allowed. He further submitted that amendment cannot claim as a
matter of right under all circumstances and lapses of time legal rights
accrued to the defendant such amendment resulting in the defeat of
such a right should not be allowed. He relied upon B. K. Narayana
Pillai V/s. Parameswaran Pillai and Ors., (2000) 1 SCC 712. He
further submitted that the plaintiff intentionally took the record and
proceedings in the Hon'ble High Court and delay the matter. He further
submitted that the plaintiffs have taken several notice of motion and
chamber summons which shows that the plaintiff dilatory tactics and it
is abuse of process of Court so, exemplary costs to be ordered against
-- 4 of 8 --
5 CS 26019
the plaintiff. He relied upon (2011) 8 SCC 249.
10. Advocate for plaintiffs submitted that the authority relied by the
Advocate for defendant is not applicable in the present case. The
plaintiff has not played dilatory tactics in the present suit.
11. I have gone through the authority relied by both the Advocates.
Present suit is of 1981. As per authority of Advocate for plaintiff in
State Bank of Hyderabad V/s. Town Municipal Council. Proviso was
not applicable in view of section 16(2)(b) of Amending Act, 2002. The
present suit is of 1981 prior to amendment Act of 2002 so, proviso is
not applicable in the present case so, submissions made by Advocate for
defendants that after commencement of trial, the plaintiff cannot be
allowed to amend the pleadings is not accepted so, plaintiff's
application for amendment is maintainable.
12. So far as authority relied by Advocate for defendant B. K.
Narayana Pilla V/s. Parameswaran Pillai and Anr, in para 3 observed
that the purpose and object of Order 6 Rule 17 of the Code of Civil
Procedure is to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. The power to allow the
amendment is wide and can be exercised at any stage of the
proceedings in the interests of justice on the basis of guidelines laid
down by various High Courts and Supreme Court. It is true that the
amendment cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the Courts while deciding such
prayers should not adopt a hyper technical approach. Liberal approach
should be the general rule particularly in cases where the other side can
be compensated with the costs. Technicalities of law should not be
-- 5 of 8 --
6 CS 26019
permitted to hamper the Courts in the administration of justice between
the parties. Amendments are allowed in the pleadings to avoid uncalled
for multiplicity of litigation.
13. I have gone through the proposed pleadings and original
pleadings, it shows that proposed pleadings is of a subsequent events
i.e., order of the registrar granting deemed conveyance in favour of
society so, ought to have been allowed amendment. The plaintiffs
produced copy of order dated 21.03.2016 in Notice of Motion no.2237
of 2015 in Suit No.845 of 2013 in the Hon'ble High Court which shows
that the Hon'ble High Court called the entire file containing roznama in
Suit No.7546 of 1981 pending before Court Room No.14 so,
accordingly, record and proceedings was sent to the Hon'ble High
Court. However, record and proceedings returned and received in the
month of December, 2016. Thereafter, the plaintiff has taken notice of
motion for setting aside order dated 02.07.2015 i.e., closing evidence of
plaintiff. After allowing Notice of Motion No.57 of 2017 on 10.08.2017,
PW1 filed affidavit of evidence and also notice of motion for leading
secondary evidence that Notice of Motion No.3274 of 2015 was allowed
on 23.04.2018 and accordingly, liberty to plaintiff to lead secondary
evidence then the plaintiff's Chamber Summons No.1908 of 2017 for
taking legal heirs of defendant no.5 was allowed. Thereafter, on
02.02.2019 present chamber summons is filed. The subsequent events
are from 2014, 2018 and filing of Suit No.845 of 2013 so, plaintiff
ought to have file application for amendment immediately after
happening of the subsequent events but due to that subsequent events
point of limitation not hamper so, mere filing of amendment application
after some time chamber summons cannot be rejected. Utmost for
filing delay in chamber summons, costs can be imposed on plaintiff so,
-- 6 of 8 --
7 CS 26019
defendant can compensate in terms of money. The authority relied by
Advocate for defendant about exemplary costs is concerned, facts in
that suit are totally different. In the present suit, suit is pending from
1981 so, it only cannot be given blame to the plaintiff so, I find that it is
not fit case to grant exemplary costs so, arguments advanced by the
Advocate for defendants for granting exemplary costs is rejected. I find
that amendment is in respect of subsequent events and if allowed no
prejudice will be caused to the defendant. On the contrary, amendment
is not allowed and subsequent facts are not brought on record, it will
certainly cause injustice to plaintiff so, I find that it is fit case to grant
amendment hence, amendment is allowed on costs of Rs.2,000/
payable to the defendant no.4. With this, chamber summons is allowed
and accordingly, I proceed to pass the following order:
O R D E R
1. Chamber Summons No.260 of 2019 is allowed.
2. The plaintiff is directed to carry out amendment as per schedule
on cost of Rs.2,000/ payable to the defendant no.4.
3. Chamber Summons No.260 of 2019 stands disposed of
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 02/05/2019 City Civil Court, Gr. Mumbai
Dictated on : 02/05/2019
Transcribed on : 08/05/2019
Signed on : 09/05/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
09.05.2019 1.37 p.m. ARUN ANNAMALAI MUDALIYAR
-- 7 of 8 --
8 CS 26019
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
02.05.2019
JUDGEMENT /ORDER signed by
P.O. on
09.05.2019
JUDGEMENT /ORDER uploaded
on
09.05.2019
-- 8 of 8 --