Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S.308/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
Chamber Summons No. 308 of 2018
In
S.C. Suit No. 2889 of 1994
Sewri Nilgiri Udyog Bhavan
Coop. Soc. Ltd., ...Plaintiffs.
V/s.
1. Municipal Corporation of
Greater Bombay & Anr. ...Defendants.
Appearances: Ld.Adv. Mr. Chheda for the plaintiff.
Ld.Adv.Mr. Bhadang for defendant No. 2
Coram : D.K. Gudadhe, Adhoc Judge.
(C.R.No. 12)
Dated: 1st November, 2018
Order
1. This chamber summons is taken out by the plaintiff to
permit it to make amendment in the pleadings. The facts of the
Chamber Summons in short are as under.
2. According to the plaintiff, in addition to the suit there are
two other suits connected with the subject matter are pending. In
connection with such two other matters the Hon'ble High Court has
given direction to maintain the suit property of this matter also. But
despite this, the defendants failed to do so and therefore, such fact is
require to be brought on record. Hence, this chamber summons.
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3. Defendants opposed the chamber summons on a ground
that amendment is not necessary to decide controversy between the
parties and especially when the evidence of both parties have been
closed.
4. On these rival contentions of the parties, the points that
arise for determination are as follows. I have given my findings thereon
for the reasons mentioned in the subsequent paras.
Sr.No. POINTS FINDINGS
1. Whether the proposed amendment is
necessary for the purpose of determining
real question in controversy between the
parties and the plaintiff in spite of due
diligence could not have raised the matter
before commencement of the trial ?
No.
2. What order? As per final order.
Reasons:
As to Point No.1:
5. To ascertain whether the proposed amendment is necessary
or not, one is require to see the plaintiffs' pleadings and relief they
sought for. In case at hand the plaintiffs' only prayer reads thus,
“That this Hon'ble Court may please to pass mandatory orders an
order and directions against the defendants, their officers,
servants and agents to remove nuisance created by blockage and
over flowing of the drainage lines situated on the said public road
at C.T.S. NO. 841, of Tokersy Jivraj Road, Sewri (W), Bombay
400 015 and further also direct the defendants to keep and
maintain the said drainage line in proper manner without causing
any nuisance and/or health hazardous.”
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Whereas; by way of proposed amendment the plaintiffs want to bring
on record that in spite of their requests to defendant Corporation and
particularly in view of the Hon'ble High Court directions to maintain the
said public way they failed to do so. According to the plaintiff, they
made such representation to the defendant Corporation after
26.08.2016.
6. So from the plaintiffs' main relief and the proposed
amendment, it is seen that same is not at all necessary for deciding as to
whether the defendant Corporation acted in compliance of the
directions of the Hon'ble High Court or not. This is also especially when
defendant No. 2 disputed the said public way as a public way and
claimed to be owner of the said way. In view of all these facts of the
matter, I am of firm view that the proposed amendment is not
necessary. At this juncture, it will not be out of place to mention here
that both the parties relied upon following citations.
1. Revajettu Builders & Developers V/s. Narayanswamy and Sons and
others, (2009) 10 Supreme Court Cases 84.
2. B.K.Narayan Pillai V/s. Parameshwaran Pillai & others, (2000) 1
Supreme Court Cases 712.
3. Kamlesh s/o. Jagannath Suryavanshi & Anr. V/s. Kalyan s/o. Shirshir
Kumar Dutta & Anr., 2013 (6) ALL MR 537.
4. Ragu Thilak D. John V/s. Rayappan and others, AIR 2001 Supreme
Court 699.
5. Mount Mary Enterprises V/s. Jivratna Medi Treat Pvt. Ltd., 2015(2)
Bom.C.R. 446.
6. Shri Rajaram Naik V/s. The State of Goa & Ors., 2016(1) ALL MR 5.
7. Barkatali Abdull Razzak Kazi and others V/s. Manzoor Abdul Razzak
Kazi & another, 2014 (5) Mh.L.J. 44.
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7. On perusal of these authorities, the cardinal principle for
deciding the use in question is to whether amendment is necessary or
not for determining real question in controversy between the parties for
proper and effective adjudication of the case and Court must not refuse
bona fide, honest, legitimate and necessary amendment and, should
never permit malafide, worthless and/or dishonest amendments.
8. But it has already been seen that the proposed amendment
is not necessary for deciding real question in controversy between the
parties. Hence, I answer this point in negative.
As to Point No.2:
9. In view of my findings to above point and reasons for the
same, I hold that the proposed amendment is not necessary and
consequently the chamber summons deserves to be rejected.
Accordingly, I answer this point and proceed to pass order in following
terms.
Order
1. Chamber summons is hereby rejected
2. Accordingly, Chamber Summons is disposed of.
(D.K. Gudadhe)
Adhoc Judge,
01.11.2018 City Civil Court, Gr. Bombay.
Dictated on : 01.11.2018
Transcribed on : 02.11.2018
Signed on : 03.11.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 03.11.2018 5.40 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
01.11.2018
JUDGMENT /ORDER signed by P.O. on 03.11.2018
JUDGMENT /ORDER uploaded on 03.11.2018
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