Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.202 OF 2018
IN
S.C. SUIT NO.1252 OF 2015
Pramodkumar Jagatnarayan Shrivastav ..Plaintiff
V/s
Mr.Madhavlal N.Pittiedeleted since deceased
Vivek Madhavlal Pittie ..Defendant
Ld. advocate Jitendra Mishra for the plaintiff
Ld. advocate Shukla for the defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 31/07/2019
ORAL ORDER
1. The plaintiff has taken out this Chamber Summons
for amendment of the plaint. It is the contention of
the plaintiff that on 02/11/2015, the watchman
employed by the defendant illegally attempted to
restrain the plaintiff from using common WC and
common water tap near to the suit premises i.e.
Shivlal Motilal compound. The said watchman
abused the plaintiff in filthy language and
represented the plaintiff that defendant has asked
them to stop the plaintiff from using the common WC
and water tap. The plaintiff has lodged complaint of
the same. The police advised him to approach the
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Court. The plaintiff wish to incorporate these facts in
the plaint.
2. The chamber summons is opposed by the defendant
on the ground that the chamber summons is false,
frivolous, malafide, vexatious, bad in law and
without any cause of action. It is not maintainable
and deserves to be dismissed. The plaintiff wish to
incorporate new facts and to change the nature of
suit which is not permissible. The plaintiff has never
claimed that he has been using the common WC and
water tap since more than 40 years. The defendant
prayed for rejection of the chamber summons.
3. The suit is for injunction restraining the defendant
from forcibly dispossessing the plaintiff from the suit
premises i.e. Room No.13, Shivlal Motilal
Compound, Belasis Road, Near Rammurthy Garage,
Dr.D.B.Marg, Mumbai Central, Mumbai400 008. The
contention of the plaintiff is that he is in possession
of the suit premises and he should not be evicted
otherwise than following due process of law. He
submits that suit premises does not contain WC and
bathroom and two WC and common tap situated
near the suit premises were in use of the plaintiff and
his family.
4. The crux of the argument of Ld. Counsel for the
defendant is that by introduction of this plea, the
nature of suit will change. He would submit that the
new plea cannot be added by way of amendment. In
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support of his contentions, he placed reliance upon
the following judgments:
(a) A.K.Gupta and Sons Ltd V/s Damodar Valley
Corporation of Hon'ble Supreme Court, AIR 1967
SC 96
(b) Chaubey Sushil Chandra V/s Raj Bahadur of
Hon'ble Allahabad Court, AIR 1977 Allahabad 259
5. He also argued that there is unreasonable delay. The
suit was filed in May 2015 and the alleged incident,
as per the contention of the plaintiff occurred in
November, 2015. So there is delay in filing the
amendment application. In support of his
contentions, he placed reliance upon the following
judgment:
Kamala Bala Biswas V/s Kalachand Sarkar of
Hon'ble Calcutta High Court, AIR 1996 Calcutta
81.
6. I had given conscious consideration to the law laid
down in the above cited judgments. The judgment in
the case of Kamala(supra) with greatest of respect is
not applicable in the case in hand for the reason that
in that case the amendment was sought in appeal
and explanation for delay for not making or not
taking out application for amendment at the time of
trial was not given. In the present case trial has not
been commenced.
7. The issue which is raised by the defendant is that
plaintiff is having no right over the suit premises and
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also no right of use of common WC and water tap are
required to be dealt with while deciding the suit on
merits. At the hearing of amendment application, the
rights of the parties cannot be decided. The Court is
not expected to go into the merits of the amendment.
It is also apparent from the recitals in the chamber
summons that alleged incident of denying the
plaintiff and his family from using common WC and
water tap was on 02/11/2015. The notice of motion
is also filed by the plaintiff vide notice of motion
no.4327/2015. The contention of the plaintiff is
that he has right to use common WC and water tap
which are near to the suit premises. No doubt the
amendment application is after two years of the
alleged cause of action. The dispute is between the
parties has to be decided in single compose. The
rights of use of water tap and WC claimed by the
plaintiff are related to the suit premises. Hence, it
cannot be said that the plea taken by the plaintiff is
new plea and would change the nature of the suit.
Therefore, the ratio in the above cited case of
A.K.Gupta and Chaubey Sushil with greatest of
respect are not applicable to the facts of the case.
Thus in order to avoid multiplicity of the
proceedings, the present chamber summons needs
consideration. Hence, it is expedient to pass
following order:
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ORDER
1. Chamber Summons No. 202/2018 is made absolute
in terms of prayer clause (a) subject to cost of
Rs.3,000/ to be paid by the plaintiff to the defendant
within a period of 14 days from today.
2. Plaintiff to carry out the necessary amendment within
a period of 14 days from today.
3. Payment of cost is subject precedent.
4. Chamber summons No.202/2018 is disposed of
accordingly.
31/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 31/07/2019
Transcribed on : 01/08/2019
Signed on : 03 /08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
31/07/2019
Judgment and order signed by P.O. 03/08/2019
Judgment/order uploaded on 03/08/2019
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