Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS NO. 407 OF 2020
MHCC010027112020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 407 OF 2020
IN
S.C.SUIT NO. 1912 OF 2012
Rekhadevi Rambahadur Sen. …Applicant
Versus
Hariprasad Munill Verma. … Defendant.
Advocates
Pravin Patel for the plaintiff.
Eknath Dhokale for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 25th November, 2021.
ORAL ORDER
Heard advocate for both parties on chamber summons moved on
behalf of the plaintiff for amendment of the plaint by deleting prayer
clause (a), substituting new prayer clause (a) and adding para no.14(a)
and 14(b) after para no.14 in the plaint and for deleting the word “save
and except by following due process of law” from para no.14,15,16 and
prayer clause (b) and (c) of the plaint.
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ORDER ..2.. CS NO. 407 OF 2020
2. Perused the chamber summons, reply of the defendant and
proceedings of the case.
3. Advocate for plaintiff submitted that matter was posted for filing
evidence of the plaintiff somewhere in the year 2017 and on
13.09.2017, plaintiff engaged her new advocate. Thereafter the new
advocate filed list of documents alongwith affidavit of evidence of the
plaintiff. Thereafter some documents are exhibited on 24.01.2019 and
document at Annexure no.1 to 3 in the list of documents being photo
copies not exhibited. At that time, the new advocate while going
through the entire proceedings, realized that the prayers as sought by
the earlier advocate are inconsistent and contradictory of the ownership
of the plaintiff and earlier advocate instead of asking the eviction of the
defendant mistakenly prayed that the plaintiff not be removed without
due process of law. Hence he prayed for allowing the chamber
summons.
4. Advocate for the defendant opposed the chamber summons on
the ground that the trial is commenced hence chamber summons is not
tenable in view of proviso to order VI rule 17 of the C.P.C. However he
admitted that the defendant is in possession of the portion of suit
premises as shown in rough sketch of the suit premises annexed with
the present chamber summons. Hence he prayed for dismissal of the
notice of motion.
5. As per Order VI Rule 17 of the C.P.C., amendment of the
pleadings shall be made as may be necessary for the purpose of
determining the real controversy between the parties. As per proviso of
Order VI Rule 17 of the C.P.C., no application for amendment shall be
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ORDER ..3.. CS NO. 407 OF 2020
allowed after the trial as commenced unless the Court comes to the
conclusion that in spite of due diligence, the party could not have raised
the matter before the commencement of the trial.
6. From the perusal of pleadings of the parties, it appears that
plaintiff claims to be the possessor and owner of the suit premises on
the basis of Affidavit-cum- Sale Agreement dated 03.11.2004 executed
by the defendant and thereafter the defendant forcibly entered into the
suit premises and refused to vacate the same. Hence the suit is filed.
7. On the other hand defendant denied the execution of Affidavit-
cum- Sale Agreement dated 03.11.2004 and stated that said document
is forged. However defendant admitted his possession in portion of the
suit premises as shown in rough sketch of the suit premises annexed
with the present chamber summons.
8. No doubt, the plaintiff was aware about the possession of the
defendant in the suit premises. Defendant filed his written statement.
Issues are framed on 11.09.2015. Plaintiff filed examination-in-chief on
14.11.2017. Documents of plaintiff are executed and case was fixed for
cross examination of the plaintiff since 04.03.2019. Thereafter, the
plaintiff tendered chamber summons no.1013 of 2019 for amendment
on the same ground and withdrawn the same on 17.01.2020 with
liberty to take out fresh chamber summons. Then on very next date i.e.,
13.02.2020, plaintiff taken out the present chamber summons.
9. Thus after perusing the record and hearing arguments of
advocate for both parties, it appears that pleadings in the plaint is
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ORDER ..4.. CS NO. 407 OF 2020
mistakenly worded by earlier advocate of the plaintiff. It is well settled
that for mistake of advocate, party should not suffer.
10. Execution of Affidavit-cum- Sale Agreement dated 03.11.2004
between the parties is in dispute. Possession of the plaintiff on first floor
of the suit premises on 84 sq. fts. and possession of the defendant on 96
sq. fts. on the ground floor of the suit premises is not in dispute at this
stage. It is a matter of trial whether plaintiff is in possession of the
portion of the suit premises by virtue of Affidavit-cum- Sale Agreement
dated 03.11.2004 or the said document is forged and whether the
plaintiff is entitled to possession of 96 sq. fts. from the defendant on the
ground floor of the suit premises. To decide this real controversy
between the parties, proposed amendment is necessary.
11. It is well settled that rules are handmade and made to subserve
the ends of justice. Admittedly the suit is filed in the year 2012 and the
trial is commenced but this fact do not take away right of the plaintiff to
amend the plaint to decide the real controversies between the parties.
No prejudice would be caused to the defendant if chamber summons is
allowed. For causing delay and inconvenience, the defendant can be
suitably compensated in terms of money. Under the facts and
circumstances, chamber summons is liable to be allowed subject to
costs. Hence following order.
ORDER
1. Chamber Summons No.407 of 2020 is allowed subject to costs of
Rs.5,000/- to be paid to the defendant before next date.
2. Plaintiff to carry out amendment within 14 days from the date of
this Order and serve copy of amendment plaint on the defendant before
next date.
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ORDER ..5.. CS NO. 407 OF 2020
3. Chamber Summons No.407 of 2020 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 25.11.2021
Typed on : 25.11.2021
HHJ signed on : 25.11.2021
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ORDER ..6.. CS NO. 407 OF 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 25.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
25.11.2021
JUDGMENT/ORDER signed by P.O.
on
25.11.2021
JUDGMENT/ORDER uploaded on 25.11.2021
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