Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO.MHCC01-001508-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 222 OF 2020
IN
SUIT NO. 330 OF 2011
SHRI Dharmesh Jayantilal Paun ...Plaintiff.
Versus
Smt. Sejal Rohit Pabari ...Defendant.
Appearance:
Advocate Sachin Choudhary i/b Dharam Company for Plaintiff.
Advocate Mr. Harshad Bhoir for Defendant.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 29th September, 2021
ORDER
The plaintiff has taken out the Chamber Summons under
Order 6 Rule 17 of CPC seeking amendment in the plaint. According to
plaintiff, during the pendency of the suit, vide order of Notice of Motion
No.834 of 2011 dated 21.03.2011, the inspection of the suit premises
was ordered. In pursuance of the order, the Commissioner Architect
submitted his report dated 27.06.2011. It is necessary to make
necessary pleading in the light of the report of Architect. According to
plaintiff, since, it is subsequent event and the report of the Architect
goes to the root of the proceeding. Hence, it is necessary to have the
pleadings in the suit.
2. The Chamber Summons has been objected by the
defendant on the premise that, it has been sought at belated stage, after
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the commencement the trial. The plaintiff was well aware of receipt of
the report of the Architect dated 27.06.2011. But, no care was taken to
seek any amendment before commencement of the trial. As per the
proviso to Order 6 Rule 17 of the CPC, the amendment in plaint cannot
be permitted. As the plaintiff could not point out that despite due
diligence, it could not have raised the matter before the commencement
of trial. According to defendant, the amendment is unnecessary.
Defendant asked to dismiss the Chamber Summons.
3. Heard both. Perused Chamber Summons, reply and the
record. On its basis, following points rise for the determination and the
findings to each of them for the reasons recorded as follows.
Sr.No. POINTS FINDINGS
1. Whether the proposed amendment is
necessary for deciding the real questions
of controversy involved in the suit ?
Yes.
2. Whether the amendment has been
sought, after the trial has commenced ?
No.
3. What order ? N/M is allowed.
Reasons:
As to Point Nos. 1 & 2 :
4. It is a matter of record that at the instance of plaintiff, vide
order on Notice of Motion No.834/2011, one Architect was appointed
to inspect the suit premises. The said Architect submitted his report to
the Court on 27.06.2011. The plaintiff has sought an amendment on
04.02.2020 in respect of that report in its plaint on 04.02.2020. But the
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question is whether the proviso to Rule 17 Order 6 of the CPC applies to
the present Chamber Summons ? Though the issues were framed on
16.08.2018, till date, the plaintiff has not led the evidence. No affidavit
in lieu of examinationinchief of plaintiff witness has been filed on
record. It is settled legal position that the trial commences when the
first affidavit of evidence is filed on record. Therefore, it requires to
hold that the proviso to Rule 17 Order 6 of CPC does not apply to the
present Chamber Summons.
5. But the fact that for about 8 years, the plaintiff did not take
care to make an appropriate amendment in the plaint in the light of
report of Architect. Though, it is found that the plaintiff has sought
amendment before the commencement of trial, the period of 8 years
seeking the amendment cannot be ignored. Had it been seeking
amendment within reasonable time after receipt of the report dated
27.06.2011, then it would have been welcomed.
6. Now, the question is whether the proposed amendment is
necessary for deciding real questions of controversy involved in the suit.
The suit is for declaration that the defendant has carried out the
unauthorized addition and alteration in the suit flat. Taking note of
that, the Court had allowed the Notice of Motion of the plaintiff and the
Architect was appointed to make inspection of the suit premises. The
averments in the plaint in the light of that report, are necessary for
deciding the real observations of controversy involved in the suit. But
at the same time, considering the inactions of plaintiff for about 8 years
in seeking amendment in plaint, it is proper to impose heavy costs on
the plaintiff and thereby compensate the defendant, while permitting
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the amendment in the plaint. As the proposed amendment is appearing
necessary and it has been sought before commencement of the trial,
answering point Nos.1 & 2 accordingly, following order is passed.
ORDER
1. Chamber Summons is allowed subject to costs of Rs. 20,000/
payable to the defendant within 07 days.
2. The payment of costs is condition precedent.
3. On paying/depositing costs, plaintiff is permitted to make
necessary amendment in the plaint as per Schedule.
4. In further 07 days plaintiff to submit amended plaint and its
copy to defendant and thus make compliance of the order within
14 days from today.
5. Accordingly Chamber Summons No. 222/2020 is disposed off.
Dated : 29.09.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 29.09.2021
Transcribed on : 01.10.2021
Signed on : 04.10.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 04.10.2021 5.20 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
29.09.2021
JUDGMENT /ORDER signed by P.O. on 04.10.2021
JUDGMENT /ORDER uploaded on 04.10.2021
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