Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 378 OF 2018
CNRMHCC010027192018
IN
L.C.SUIT NO. 1622 OF 2011
CNRMHCC010022692011
Kantilal Hemraj Chheda )...Plaintiff.
V/s.
Municipal Corporation of Greater Mumbai )...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 12 /04/2018.
Ld. Adv. Satyam Dubey for the plaintiff.
Ld. Adv. Mrs. Kamble for the defendant /BMC
ORAL ORDER
This chamber summons is taken out by the plaintiff for
amendment of the plaint. It is supported by an affidavit. The
Municipal Corporation of Greater Mumbai (in short 'MCGM') has
strongly opposed the chamber summons on the ground that no
substantial reasons are disclosed by the plaintiff for not pleading the
proposed facts at the time of filing of the suit itself.
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2. Heard learned advocates of both the sides.
3. The main suit is for declaration and injunction wherein
plaintiff is claiming declaration that the notice issued by the Municipal
Corporation Act ( in short 'MMC Act') is null and void. As well, the
plaintiff is also praying for grant of perpetual injunction restraining the
MCGM from taking any action of demolition in pursuance to the notice
which is under challenged.
4. It is contended on behalf of the plaintiff that , at the time of
filing of the suit, he had no documents to produce on record to show
that the building known as ' Dimubai Niwas' was already constructed in
the year 1975 and the 3rd floor was in existence since then. It is also
submitted that by taking recourse of Right to Information Act, on 4th
day of October, 2016 the plaintiff became aware of the documents
which he intends to place on record and wants to plead regarding the
same. These facts are supported by an affidavit being executed by the
plaintiff. As such, it is shown that as the plaintiff was not aware of the
fact that the suit building was constructed prior to 1975 and was not
holding the said documents, in my opinion, the reasons mentioned are
sufficient to conclude that the plaintiff could not have pleaded these
fact at the time of filing of the suit, itself.
5. I have carefully gone through the schedule annexed to the
chamber summons and the proposed amendment. Plaintiff intends to
add two paragraphs in the plaint. On perusal of the contents of those
paragraphs, plaintiff wants to plead regarding existence of the building
and the documents relating thereto. The proposed amendment , in my
opinion is necessary to decide the real questions in controversy between
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the parties as one of the issue after amendment would be with regard to
the facts that, whether the notice structure was in existence prior to the
datum line. The proposed amendment if allowed is not going to change
the nature of the suit. In my opinion, no prejudice would be caused to
the MCGM as the MCGM will certainly get an opportunity to file
additional written statement, if any. Further to avoid the multiplicity of
the proceedings, the chamber summon needs to be allowed in the
interest of justice. Hence, I pass the following order.
ORDER
1. Chamber summons no. 378/18 is allowed and made
absolute in terms of prayer clause (a) and (b).
2. The plaintiff to carry out the amendment as per the
schedule annexed to the chamber summons within two
weeks and shall supply the copy of amended plaint on the
MCGM, within two weeks thereafter.
3. Chamber Summons is disposed of accordingly.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
Date:12/04/2018. City Civil & Sessions Court,
Gr.Mumbai.
Dictated on :12/04/2018.
Transcribed on :12/04/2018.
Signed on :12/04/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
13.04.2018 Mrs. V.V.Mhatre
TIME:4.20p.m.
Name of the Judge
( With Court room no.) Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
12.04.2018
JUDGMENT/ORDER signed by
P.O. on
12.04.2018
JUDGEMENT/ORDER uploaded on 13.04.2018
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