Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.203 OF 2018
IN
S.C. SUIT NO.1256 OF 2015
Lalji Uditnarayan Dube ..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 wish 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. Patra shed No.B.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 major crux of the Ld. Counsel for the defendant
is that by introduction of this plea, the nature of suit
will change and new is incorporated. He would
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submit that the new plea cannot be added by way of
amendment. In 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, was 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) is not applicable in the
case in hand for the reason that the amendment was
sought in the appeal and explanation for delay for
not making or not taking out at the time of trial was
not given. In the present case trial has not
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 not right of use of common WC and water tap.
At the time 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.4328/2015. 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 cases 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:
ORDER
1. Chamber Summons No. 203/2018 is made absolute
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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.203/2018 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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