Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No.297/2020 in
L.C. Suit No. 206/2020.
MHCC010019282020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 297 OF 2020.
IN
L.C. SUIT NO. 206 OF 2020.
Allah Baksh Haider Shaikh....……..................... …. PLAINTIFF.
V/s.
M.C.G.M. ….....……………………………….….. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 13th July, 2022.
APPEARANCES :
Ms. Vaibhavi Pawar , Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Chamber Summons (for the
brevity ‘Ch/s’.) U/O. VI Rule 17 of the Civil Procedure Code of 1908, for
amendment in the plaint. Perused the Ch/s., his accompanying affidavit
and say of the defendant. Heard both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the proposed amendment is
necessary for deciding the real question
in controversy between the parties ?…. .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO.1 :
03. By filing this Ch/s., the plaintiff's only anxiety is to bring on
-- 1 of 4 --
.2. CH/S No.297/2020 in
L.C. Suit No. 206/2020.
record that initially, he challenged the notice of dtd. 26.11.2019 and
this Court ordered the defendant to re-visit the site and to prepare un-
scaled map and location map, along-with photos of the structure.
Likewise, the plaintiff was directed to submit affidavit of landlord and
adjacent owner to clarify that he was holding the structure, as received
by the landlord in the year of 1988. He was further directed to file the
un-scaled map of the structure. That apart, on 18.01.2020, this
defendant was directed to consider his reply and documents and to pass
the Order. On 22.01.2020, accordingly, he passed the Speaking Order.
However, the said Order is contrary to the law and was passed without
considering his reply. In the circumstances, by filing the Ch/s. the
plaintiff prayed to amend the said facts and relief of declaration to that
effect along-with that of perpetual injunction, restraining the defendant
from proceeding against the notice structure in view of the said
Speaking Order. He further submitted that the said Order is bad in law,
as the notice structure existed prior to the datum line. Moreover, as the
structure is situated in slum area, in view of section 47 of the Slums Act,
the defendant ceases to have jurisdiction to issue the notice. The
defendant denied this Ch/s. and submitted that as the said Order was
passed on 22.01.2020, it is the subsequent event. He further submitted
that the plaintiff didn't comply with the directions as per the Order dtd.
18.01.2020.
04. Having considered the rival submissions, at the outset, it is
pertinent to note that so far as the passing of the Order is concerned, it
is the event occurred subsequent to the filing of suit. Being so, it is to be
incorporated in the plaint. The suit is at initial stage and the trial is yet
to commence. Further, the proposed amendments are formal in nature
and it would not cause any prejudice to the defendant. Simply because,
-- 2 of 4 --
.3. CH/S No.297/2020 in
L.C. Suit No. 206/2020.
he would get a chance to rebut the same on trial. Moreover, it would be
for the plaintiff to establish that the said Order is bad in law and it came
to be passed without considering the facts that the notice structure is
situated in the Slum area and existed even prior to the datum line. That
apart, he is also required to substantiate that in view of Section 47 of
the said Act, the defendant had no locus to proceed against the same. In
the circumstances, I am of the opinion that to decide the suit effectively,
the present Ch/s. needs to be allowed. Hence, I answered point No.1 in
the affirmative and to answer point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 297/2020 is made absolute in
terms of prayer Clause (a) only.
(ii). The plaintiff is directed to carry out the proposed
amendment in the plaint, positively within two
weeks from the passing of this Order and to file
copy of amendment plaint simultaneously.
(iii). Costs to follow the event.
(iv). Chamber Summons No. 297/2020, accordingly,
stands disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 13.07.2022. City Civil Court, Mumbai.
Dictated on : 13.07.2022.
Transcribed on : 13.07.2022.
Signed on : 14.07.2022.
-- 3 of 4 --
.4. CH/S No.297/2020 in
L.C. Suit No. 206/2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15.07.2022. at 5.30 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 13.07.2022.
Judgment/Order signed by P.O. on 14.07.2022.
Judgment/Order uploaded on 15.07.2022.
-- 4 of 4 --