Order 1

Order Details: Chamber summons
Pdf Text: Order CS 231-2018 S-4661-2013 :1:
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.231 OF 2018
IN
SUIT NO. 4661 OF 2013
Shri. Jayant Chintaman Sahasrabudhe. Plaintiff.
V/s.
Mumbai Municipal Corporation & Others. Defendants.
Advocate Mr. R. K. Yadav for plaintiff.
Advocate Mr. N. V. Sanglikar defendant No.2.
CORAM : HER HONOUR JUDGE
MS. S.R. PATIL.
(C.R.NO.11)
DATE : 07th JUNE, 2018
ORAL ORDER
The present Chamber Summons is moved by the plaintiff thereby
seeking amendment as per the schedule mentioned in the Chamber
Summons. The plaintiff has filed the suit in the year 2013 for various
reliefs against Bombay Municipal Corporation, Vasant Shamji Kenia and
his wife Manju Vasant Kenia i.e. defendant Nos.2 and 3. The plaintiff
submits that he issued notice of the present suit to defendant Nos.2 and
3. After filing of written statement by the defendant Nos.2 & 3 the
plaintiff came to know that defendant nos.2 and 3 had filed Short Cause
Suit bearing No. 1285 of 1997 in the said case the plaintiff was
defendant No.3. The said suit was hotly contested. In the said suit court
appointed Court Commissioner to verify the existence of two or three
toilets in the suit flat. In that matter Court Commissioner visited site
and filed his report. The plaintiff also filed application under RTI dated
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13.02.2013 and sought certain information from defendant No.1. He
wants to bring the report of Court Commissioner and also whatever
information received by him under RTI on record by seeking the
amendment in the plaint by filing the present Chamber Summons.
2. Notice of Chamber Summons issued to defendant Nos.2 and 3.
They filed their reply and thereby strongly objected the present
Chamber Summons on the ground that the plaintiff was party to Suit
No. 1285 of 1997 in which they were appeared and filed their written
statement. Whatever the plaintiff seeks to amend in the plaint the said
fact are well within the knowledge of the plaintiff prior to filing of this
suit inspite of that he deliberately not stated the said things in his
plaint. After the defendant nos.2 and 3 brought the said fact before the
court by filing their written statement on 20.08.2014. Only to prolong
the matter the plaintiff filed one or other application before the court.
The present application is barred by law of limitation as the defendant
Nos.2 & 3 filed their written statement on 20.08.2014. The application
for amendment ought to have been made within 90 days from the date
of filing written statement by the defendants. Hence they prayed to
reject the present Chamber Summons.
3. Heard both sides. As per the Order VI Rule 17 of the Code of
Civil Procedure “the court may at any stage of the proceeding allow
either party to alter or amend his pleadings in such manner and on such
term as may be just and all such amendment shall be made as may be
necessary for the purpose of determining the real question in
controversy between the parties”. Provided that no application for
amendment shall be filed after trial has commenced unless the court
comes to the conclusion that inspite of due diligence the party could not
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have raised the matter before the commencement of trial.
4. After perusal of the Chamber Summons and reply filed by
defendant Nos.2 & 3, it is admitted fact that the plaintiff was party to
Suit No. 1285 of 1997 and he is aware about all the orders passed in
the said suit. Inspite of having knowledge of all the facts he has not
mentioned the said fact in his plaint which he has filed on 30.08.2013.
Even the plaintiff sought the information from the Bombay Municipal
Corporation under RTI on 13.02.2013 means prior to lodging of the
present suit. Whatever amendment the plaintiff wants to carry out prior
to filing of the suit he is having knowledge of all the orders and
information sought from Bombay Municipal Corporation under RTI.
Even the defendants filed written statement in which they have put up
all the facts before the court on 20.08.2014 at that time also the
plaintiff has not taken any steps to file the present Chamber Summons.
Whatever the amendment the plaintiff seeks to carry out are the orders
and the information received under RTI from the Bombay Municipal
Corporation which he can refer the during the course of evidence.
5. The defendants have rightly relied on judgment of the Apex Court
in Civil Appeal No.561 of 2012 (Arising out of SLP © No.8985 of
2011) J. Samuel and Others V/s. Gattu Mahesh and Others.
Para 12 of the citation.
Para12: The primary aim of the court is to try the case on its
merits and ensure that the rule of justice prevails. For this the
need is for the true facts of the case to be placed before the
court so that the court has access to all the relevant
information in coming to its decision. Therefore, at times it is
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required to permit parties to amend their plaints. The Court's
discretion to grant permission for a party to amend his
pleadings lies on two conditions, firstly, no injustice must be
done to the other side and secondly, the amendment must be
necessary for the purpose of determining the real question in
controversy between the parties. However to balance the
interests of the parties in pursuit of doing justice, the proviso
has been added which clearly states that no application for
amendment shall be allowed after the trial has commenced,
unless the court comes to the conclusion that in spite of
diligence, the party could not have raised the matter before
the commencement of trial.
Para 13: Due diligence is the idea that reasonable
investigation is necessary before certain kinds of relief are
requested. Duly diligent efforts are a requirement for a party
seeking to use the adjudicatory mechanism to attain an
anticipated relief. An Advocate representing someone must
engage in due diligence to determine that the representations
made are factually accurate and sufficient. The term 'Due
diligence' is specifically used in the Code so as to provide a
test for determining whether to exercise the discretion in
situations of requested amendment after the commencement
of trial.
In the present case there is no due diligence on the part of the plaintiff
inspite of he was party defendant No.3 in Suit No. 1285 of 1997 and he
was well aware of whatever orders passed in the said suit by the court
he intentionally not made the said averments in his plaint regarding the
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same and even he has received information under RTI on 08.03.2013
prior to filing the present suit. For the reason best known to him why he
has not inserted the said contention in his plaint. From the conduct of
the plaintiff, it seems that only to delay the matter he wants to seek the
said amendment. Plaintiff has not given satisfactory explanation why
the said amendment are necessary. The order and judgment passed in
Suit No. 1285 of 1997 the plaintiff can relied before the court during
trial for which it is not necessary to amend the plaint. Hence I proceed
to pass following order.
ORDER
Chamber Summons No.231 of 2018 is rejected.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 07/06/2018.
Dictated on : 07/06/2018
Transcribed on : 07/06/2018
Signed on : 07/06/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07/06/2018 At 5.15 p.m. MR. V. S. SHINDE
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
07/06/2018
Judgment/Order signed by P.O. on 07/06/2018
Judgment/Order uploaded on 07/06/2018
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