Mina Kiran Doshi and Ors.VsThe Commissioner MCGM and Anr.

Date: 13-02-2020
Business: Adv. Shrivastav for plaintiff present and tendered original register ch/s No.254/2020 @ affidavit in support.
Adv. Som Sinha for defendant No.1 and 2 present.
Adv. Arun Mehta for defendant No.3 and 4 present.
As court is busy in dectating SC Case No.62/2020 judgment matter., Hence matter is adjourned.
Earlier order, if any, to continue till next date.
 Matter adjd to 06.03.2020 at 12.00 am   for NM hrg/ reply to ch/s.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 06-03-2020

Date: 06-03-2020
Business: Adv.Vinayak Gaokar h/f Ad.S.P.Shrivastva for plaintiff present.
Adv. Som Sinha for Defendant No.1 and 2 MCGM.
Adv.Arun Mehta for Defendant No.3 and 4 present.
As Court is busy in dictating judgment in Sessions Case No.85/20 and 366/19. Matter is adjourned.
Earlier order, if any, to continue till next date.
 Matter adjd to 20.04.2020 at 11.30 a.m. for NM hearing of consent of both sides.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 20-04-2020

Date: 20-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 11-05-2020

Date: 11-05-2020
Business: In view of declaration of Novel Corona Virus (COVID-19) as global pandemic by WHO and Office Order No.77 of 2020 matter adjourned.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 30-05-2020

Date: 30-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 17-06-2020

Date: 17-06-2020
Business: Adjd to
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 17-08-2020

Date: 17-08-2020
Business: Adjd to
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 21-09-2020

Date: 21-09-2020
Business: Adv. Mr. Vinayak Gaonkar h/f. Adv. Shrivastav for Plaintiff
present.
None for Defendant/MCGM present.
Earlier order, if any, to continue till next date.
Matter adjd to 10/11/2020 for N/m hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-11-2020

Date: 10-11-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 08-12-2020

Date: 08-12-2020
Business: Adv. Vinayk Gaonkar h/f Adv. S. P. Shrivastav for plaintiff present.
Adv. Som Sinha with Adv. Ms. Smita Chavan for deft no. 1 and 2/MCGM present.
Adv. Ms. Priyasha Pawar h/f Adv. Arun Mehta for deft no.3 and 4 present.
Earlier order, if any, to continue till next date.
Matter adjd to 12/01/2021 for NM Hearing and Ch/s reply.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 12-01-2021

Date: 12-01-2021
Business: Matter adjd to 04/02/2021 for Hearing of NM No.3056/19 and Reply to Ch/s No.254/2020 and draft Ch/s by defts no. 1 to 4 and Reply to Ch/s No.1444/19 by deft no.1 and 2/MCGM.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 04-02-2021

Date: 04-02-2021
Business: Earlier order, if any, to continue till next date.
Matter adjd to 20/02/2021 for Reply to Ch/s Nos.87/21, 254/2021 and 1444/19 by deft no.1 and 2/MCGM/Ch/s Hearing and NM Hearing.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 20-02-2021

Date: 20-02-2021
Business: Adv. Gaokar h/f Adv. S. P. Shrivastav for plaintiff present.
Plaintiff no. 2 is also present.
Adv. Ms. Smita Chavan for deft no.1 and 2/MCGM present and submits that MCGM Counsel Mr. Som Sinha is not feeling well. Hence requests for time to file reply to Ch/s Nos.87/21, 254/2021 and 1444/19. Time is granted till next date.
Adv. Arun Mehta for deft no.3 and 4 present.
Earlier order, if any, to continue till next date.
Matter adjd to 18/03/2021 for Reply to Ch/s Nos.87/21, 254/2021 and 1444/19 by deft no.1 and 2/MCGM/Ch/s Hearing and NM Hearing.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 18-03-2021

Date: 18-03-2021
Business: Adv. S. P. Shrivastav for plaintiff present.
Adv. Mr. Som Sinha with Ms. Smita Chavan for deft no.1 and 2/ MCGM present and has given say on Ch/s Nos. 1444/19, 254/2020 and 87/2021.
Adv. Arun Mehta for deft no.3 and 4 present.
Heard both sides on Ch/s Nos.1444/19, 254/2020 and 87/2021 at length.
Earlier order, if any, to continue till next date.
Matter adjd to 30/03/2021 for Order on Ch/s No.1444/19,
254/2020 and 87/2021/NM Hearing.
Next Purpose: CH/S ORDERS
Next Hearing Date: 30-03-2021

Date: 30-03-2021
Business: Earlier order, if any, to continue till next date.
Matter adjd to  06/04/2021  for Order on Ch/s Nos. 87/2021, 254/2020 and 1444/2019/ N.M. Hrg.
Next Purpose: CH/S ORDERS
Next Hearing Date: 06-04-2021

Date: 06-04-2021
Business: Adv. Mr. Gonkar h/f. Adv. S.P. Shrivastav for plaintiff present.
Adv. Mrs. Chavan for deft No. 1 and 2/MCGM present.
Adv. Sonika Mehta h/f. Adv. Arun Mehta for deft. no. 3 and 4 present.
Common Order on Ch/s Nos.1444/19, 254/2020 and 87/2021
          This is Suit for challenging notice u/s 354 of MMC Act, against demolition of Amrut Kunj, Anjariawadi Ghatkopar East, Mumbai-77. It is also prayed to quash letter dt.08.02.2019 and notice dt. 08.02.2019.
          This is Chamber Summons filed by the plaintiff for inserting subsequent events in the body of the plaint in respect of the TAC report and this activities in related to TAC report. The plaintiff have filed the suit to challenge the notice u/s.354 of the MMC Act and TAC report. After granting ad-interim in favour of the plaintiff the liberty was given to the defendants to refer matter to TAC a fresh for taking decision on the status of building as per guildline issued by Hon\''ble High Court. He made certain correspondence regarding the TAC to the deft/Corporation. He has handed over all the documents and correspondence to his earlier advocate who did not give the reference of the said correspondence in the plaint and therefore Ch/s No.254/2020 was filed. The correspondence regarding the structure repairing was also made on 26.11.2018. The report dt. 25.7.217 issued by Dr. K. M. Bhajoriya challenged by the plaintiff. The TAC report dt. 29.01.2019 is without considering various aspects and without carrying out essential test and the TAC themselves have not carried out the test in thir presence in view of conflict report. On 23.10.2019 all the objections send through letter in the office of the Chairman, TAC and ward office N Ward.  The report of tenants structural auditor namely CSR Consultant and Associates dt. 13.07.2019 which classifies suit building as “C2A”.
          On 13.07.2019 tenants have submitted letter dt.13.11.2019 to Deputy Municipal Commissioner with willingness to carry out necessary repairs in the building under the supervision of registered structural engineer. Accordingly on 26.11.2019 letter sent to Deputy Chief Engineer (BP) ES, Vikhroli. The TAC order dt. 11.07.2020 is without following guideline by Hon\''ble High Court. The TAC report dt. 10.06.2020 is illegal.
          On the other side deft no.1 & 2 i.e deft/Corporation strongly opposed the present Ch/s. On the grounds of sole intension of delaying the present proceeding at the instance of plaintiff. Deft no.3 & 4 submitted that in the Ch/s by way of amendment are allowed, whole cause of action of the Suit will change and therefore, the reliefs prayed in the Ch/s to joint TAC as a party and challenging its report by amendment cannot be granted.
          Heard both sides.
          Perused Chamber Summons / reply by all defendants and rejoinder. The plaintiff wants to incorporate the serious laps on the part of technical Advisor Committee which is appointed in view of the guildline issued by Hon\''ble High Court in WP 1135/14. The allegations regarding non carrying required mandatory test while doing inspection by TAC at the place of the Suit premises, are serious to the point of view in relation of guildline issued by our Hon\''ble High Court. The schedule to the Ch/s nowhere transpires that if the amendment is allowed it would change character and nature of suit. I would like to place reliance on “2003 (1) MHLJ 233, Krishnaji Shankar Moghe Vs. Sitaram Gangadhar Shende, dated- 06th June, 2002 as follows :-
	“It is well settled that a party to the Civil Proceedings if desirous of taking advantage of the events which have occurred subsequent to the filing of the proceedings, then the party is not forbidden from doing so, provided that the party has to bring on record those facts by way of amendment of the pleadings and thereafter establish the same by leading necessary evidence in support of such pleadings. But, in the absence of such facts being incorporated in the pleading, the party cannot derive any benefit from such facts nor any evidence in that regard can be produced on record or looked into. This position in law is well settled in view of the decision by the Apex Court in Om Prakash Gupta V. Rambir B. Goyal reported in 2002 AIR SCW 278. It has been held that the party relying on the subsequent event, which consists of facts beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6, rule 17 of the Civil Procedure Code.”
          Thus, the party has to bring on record the facts regarding the subsequent events by way of amendment of the pleadings and party has to establish their evidence accordingly. Where, the defendant would get right opportunity to lead evidence and object plaintiffs evidence on merit. Therefore, there is no question of diligency at the instance of plaintiff. There are certain subsequent events needs to be incorporated in the body of plaint to decide controversial issues on merit. The party did not raise the relevant facts before the commencement of the trail. The purpose of Order 6, Rule 17 of Code of Civil Procedure, 1908 is to promote ends of justice and not to defeat the law. Hence, I am inclined to pass following order :
ORDER
1.  	Chamber Summons Nos. 1444 of 2019, 254/2020 and
          87/2021 are partly allowed and made absolute in terms of
          prayer clause (a) only.
2.	The Plaintiffs are directed to carry out amendment in  		plaint as per schedule annexed to chamber summons 		within two weeks.
3.	Plaintiff shall provide the copy of amended plaint to the 	defendants.
4.	Chamber Summons Nos. 1444 of 2019, 254/2020 and
          87/2021 are disposed off accordingly.
Earlier order, if any, to continue till next date.
Nature Of Disposal: ALLOWED
Disposal Date: 06-04-2021

Main Case No: SUIT/0100938/2019
Main Cnr: MHCC010020892019
Main Filing No: 111447

Filing Number: 101827/2020
Filing Date: 10-02-2020
First Hearing Date: 13th February 2020
Decision Date: 06th April 2021
Court Number And Judge: 8-COURT 08 ADDL SESSIONS JUDGE