Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. MHCC01-002891-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.432 OF 2020
IN
S. C. SUIT NO.559 OF 2019
CHETAN MERCHANT & ORS. ]...Plaintiffs
Versus
THE DY. CHARITY COMMISSIONER ] ...Defendant.
Appearances :-
Adv. M/s. Vivek Kantawala & Co. for Plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 16th September, 2020
ORAL ORDE1R
1. Plaintiff filed this Chamber Summons to permit to amend
the plaint and to amend the affidavit of evidence.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons and heard the Learned Advocate appearing for
plaintiff.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
M
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Sr.
No.
POINTS FINDINGS
1. Whether plaintiff can be permitted to
amend the plaint ?
In the affirmative.
2 Whether plaintiff can be permitted to
amend the affidavit of evidence ?
In the negative
3 What Order ? Chamber Summons is
partly allowed, as per
final order.
REASONS
As to point Nos.1 to 3:
4. Suit proceeded exparte against the defendant as per
Roznama dated 26.09.2019. Plaintiff No.1 Mr. Chetan Merchant filed
evidence affidavit as P.W.1. Thereafter, matter postponed for hearing on
admissibility of documents. It is contention of the plaintiff that the suit
is filed for the substitution and modification of the existing scheme of
the Trust covered under orders passed by the City Civil Court, Bombay
in Suit No.3572 of 1959 and Suit No.141 of 1966. Plaintiff No.1 Mr.
Chetan Merchant filed evidence affidavit on 26.09.2019. He
inadvertently mentioned the incorrect dates of the order passed by the
Bombay City Civil Court in Suit No.3572 of 1959 and in Suit No.141 of
1966. He inadvertently mentioned the date of order passed by the
Bombay City Civil Court in Suit No.3572 of 1959 as 29.04.1960 when
the correct date of order is 10.02.1960. He inadvertently mentioned
the date of order passed by the Bombay City Civil Court in Suit No.141
of 1966 as 25.01.1967 when the correct date of order is 12.03.1966.
He made same errors in his evidence affidavit, therefore, he be
permitted to amend the plaint and his evidence affidavit.
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5. According to the plaintiff No.1 Chetan Merchant there are
errors in the plaint in respect of mentioning the dates of orders of the
Court. I am of the opinion that to decide the suit on merit plaintiff can
be permitted to amend the plaint.
6. Perused evidence affidavit of P.W.1 Chetan Merchant.
According to the P.W.1 Chetan Merchant he inadvertently made errors in
his evidence affidavit pertaining to the dates of orders. I am of the
opinion that once evidence affidavit is filed on record the same cannot
be amended. At the most PW.1 Chetan Merchant can be permitted to
file additional evidence affidavit. After amending the plaint the plaintiff
has to serve the writ of summons with copy of the amended plaint to
the defendant. Therefore, I am of the considered view that P.W.1 Chetan
Merchant (P.W.1) cannot be permitted to amend his evidence affidavit.
Therefore, I record my findings to point No.1 in the affirmative, point
No.2 in the negative and point No.3 Chamber Summons is partly
allowed as per final order and proceed to pass the following order.
ORDER
Chamber Summons No. 432 of 2020 is partly allowed as under :
1. Plaintiff No.1 Chetan Merchant is permitted to amend the plaint
as per Schedule - I attached with this chamber Summons.
2. Prayer of permitting plaintiff No.1 Mr. Chetan Merchant to amend
evidence affidavit as per Schedule – II is hereby rejected.
3. Due to Covid-19 Pandemic, it is not proper to direct the plaintiff
no.1 Mr. Chetan Merchant to amend the plaint as per Schedule-I
filed with this Chamber Summons with 14 days from the date of
this order. Therefore Plaintiff No.1 Mr. Chetan Merchant is hereby
directed to amend the plaint as per Schedule-I filed with this
Chamber Summons on or before 07/12/2020.
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4. After carrying out amendment as directed above, plaintiff no.1
Mr. Chetan Merchant is directed to file amended copy of the
plaint for court record and for defendant.
5. Suit is proceeded Ex-parte against the defendant, therefore
plaintiffs are directed to serve copy of amended plaint to the
defendant on required process fee.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 16/09/2020 City Civil Court, Gr. MUMBAI
Dictated on : 16/09/2020.
Transcribed on : 17/09/2020.
Signed on : 17/09/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.09.2020 at 03.00 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 16.09.2020
Judgment/order signed by P.O. on 17.09.2020
Judgment/order uploaded on 17.09.2020
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