Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC01-002116-2020. .1. CH/S No. 323/2020 in
L.C. Suit No. 1386/2015.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 323 OF 2020.
IN
L.C. SUIT NO. 1386 OF 2015.
Vikhroli Kannada Sangha. ....…...…................... …. PLAINTIFF.
V/s.
M.C.G.M. ....……………………………….…….. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 07th November, 2022.
APPEARANCES :
Mr. Mooman, Ld. Advocate for the Plaintiff.
Mrs. Jyoti V. Mhatre, 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., the accompanying affidavit
of Mr. Pravin Shetty, Treasurer of the plaintiff’s Society, and reply 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.
-- 1 of 4 --
CNR NO. : MHCC01-002116-2020. .2. CH/S No. 323/2020 in
L.C. Suit No. 1386/2015.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By filing this Ch/s., the plaintiff's only anxiety is to bring on
record that in the year 1960, he filed a proposal with the defendant for
additions and alterations to the existing school building, at Survey No.
36, Hariyali Village, Vikhroli. On 17.11.1960, the defendant issued the
notice U/s. 342 of the MMC Act, IOD dated 09.05.1961 and Permanent
Commencement Certificate of dtd. 28.08.1961. In view of the plaintiff,
perusal of the said documents would establish that the school building
is of G+2 floors. Accordingly, he filed the copies of file, bearing No. GB/
5747/ES, of the said proposed additions and alternations to the existing
school building. He had Bank locker No. 453 with Canara Bank and the
said documents were lying in the said locker. On 23.09.2019, when he
was required to operate the said locker, he came to know about the said
documents. Hence, he prayed for the proposed amendment in the body
of plaint. The defendant objected this Ch/s. on the count that when the
remark of the concerned Department was taken on the said proposal, it
is informed that file No. GB/5747/ES is not on record of the said Office.
There is no occurrence of subsequent event and this Ch/s.. is not liable
to be dismissed.
04. Having considered the rival submissions, at the outset, it is
pertinent to note that by filing this suit, the plaintiff assailed the notice
of dtd. 27.03.2015 and the Order of dtd. 12.06.2015 as bad in law and
prayed for the ancillary reliefs. The record shows that the suit is filed in
the year 2015 and still, the trial is yet to commence. Further, this Ch/s.
is denied by the defendant as no such proposal file is forthcoming with
the concerned Office. Certainly, the Court is not allowed to scan merits
of the proposed amendments while deciding this Ch/s.. Needless to say
-- 2 of 4 --
CNR NO. : MHCC01-002116-2020. .3. CH/S No. 323/2020 in
L.C. Suit No. 1386/2015.
that it would be for the plaintiff alone to substantiate the fact that these
documents support his claim. Hence, keeping open all the defences on
trial, I am of the opinion that to adjudicate upon the suit issues finally,
this Ch/s. needs to be allowed. However, while doing so, it shouldn't be
forgotten that the documents being referred to now are old and there is
no reasonable justification on behalf of the plaintiff for incorporation of
the proposed amendments belatedly. Obviously, the plaintiff could have
pleaded these facts earlier and he was not required to wait for till the
said documents were discovered. On this background, there are latches
on his behalf to prefer this Ch/s.. Hence, while allowing this Ch/s., I am
of the opinion that adequate costs must be imposed upon him to have
delayed this trial. Hence, I answered point No. 1 in the affirmative and
in answer to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 323/2020 is made absolute in
terms of prayer Clause (a) only, subject to payment of costs
of Rs. 3,000/- (Rs. Three Thousand) in favour of
the D.L.S.A., Mumbai, positively till the next date.
(ii). On the payment of the costs, the plaintiff is called upon to
carry out the proposed amendment in the plaint, within
two weeks from passing of this Order, and to file the
copy of amended plaint simultaneously.
(iii). Chamber Summons No. 323/2020, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 07.11.2022. City Civil Court, Mumbai.
Dictated on : 07.11.2022.
Transcribed on : 09.11.2022.
Checked and Signed on : 09.11.2022
-- 3 of 4 --
CNR NO. : MHCC01-002116-2020. .4. CH/S No. 323/2020 in
L.C. Suit No. 1386/2015.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10.11.2022.at 5.56 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 07.11.2022.
Judgment/Order signed by P.O. on 09.11.2022.
Judgment/Order uploaded on 10.11.2022.
-- 4 of 4 --