Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CH-S 373-2018 IN SU 1650-17
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.373 OF 2018
IN
L.C. SUIT NO.1650 OF 2017
Aboo Bakar Hak Perin gulam Cheriya ]....Plaintiff.
Versus
1 The Designated Officer I, ]
2 Municipal Corporation for ]
Greater Mumbai. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 16th August, 2019.
Mr. P. D. Gandhi, Advocate for plaintiff.
Ms. Mhatre, Advocate for Defendant No.1./ MCGM.
O R D E R
1. Perused. Heard.
2. In a suit seeking declaration of nulity of a notice issued under
Section 354A of the MMC Act and permanent injunction to restrain
defendants from acting upon it, the plaintiff has sought amendment to
allege that after filing of the suit he could find out that the suit premises
is approved one and is also existing since prior to the year 1962.
Therefore, the action of partial demolition by the defendant is illegal.
The amendment is also sought to add the relief of reconstruction of
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damaged portion of the first floor.
3. Chamber Summons is opposed on the ground that it will
change the nature of the suit in view of insertion of new prayer.
4. Considering the statements in the affidavit filed in respect of
the Chamber Summons, it is clear that the amendment is sought in
view of the facts discovered by the plaintiff after filing of the suit.
Though the facts may be existing since prior to filing of the suit, the
discovery is recent. In view of this, the amendment, sought to bring
on record the circumstances revealed after such discovery, can very
well be allowed.
5. The defendant has objected the insertion of additional prayer
of reconstruction on the ground that it will change the nature of the
suit.
6. It is the settled legal position that amendment which is
necessary to decide the lis between the parties effectively and
completely needs to be allowed. One of the aims and objects of the
amendment is also to curb the multiplicity of the litigation. In view
of this, the issue sought to be raised by way of insertion of prayer
for reconstruction of damaged portion, can very well be considered
and decided in this very suit, as such alleged partial demolition of
the suit premises is very much closely forming part of the series of
actions of the defendant which are already the subject matter of
present suit. Thus the plaintiff need not be directed to file a
separate suit when said relief can very well be considered and
decided in this very suit. Even if it is presumed that the nature of
suit will be slightly changed, that only cannot be the reason for
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rejection of amendment. Hence, I hold that Chamber Summons can
very well be allowed. Consequently, I pass the following order:
ORDER
1. Chamber Summons No.373 of 2018 is made absolute in terms
of prayer Clause (a).
2. The Plaintiff shall amend the plaint within two weeks from
today.
3. Plaintiff shall serve the copy of amended plaint upon the
defendants and shall supply duly typed copy of amended
plaint to this Court for the purpose of decree.
4. Defendant shall file additional reply and/or written
statement.
5. Costs in cause.
Sd/
(A.N. MARE)
Judge,
16/08/2019 City Civil Court, Mumbai.
Dictated On : 16.08.2019
Transcribed on : 19.08.2019
HHJ Signed on : 20.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
20.08.2019 5.40 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
16.08.2019
JUDGEMENT /ORDER signed by
P.O. on
20.08.2019
JUDGEMENT /ORDER uploaded
on
20.08.2019
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