Final Order 2

Order Details: Chamber summons
Pdf Text: 1 CS 41620 IN SUIT NO.62215
MHCC010028982020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 416 OF 2020
IN
SUIT NO.622 OF 2015
Mohammed Husain Haji Ebrahim Mistry ] ...Plaintiff.
Versus
Classic Corporation and Others ]…Defendants.
Appearance:
Ld. Advocate Zishan Kazi for Plaintiff.
Ld. Advocate Gatte for Defendant No.1.
Ld. Advocate Chandramore for Defendant No. 2 and 3.
Ld. Advocate Mangal Kadam for Defendant No.4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 14/02/2023
ORAL ORDER
1) Plaintiff has taken out present chamber summons for allowing
him to amend the plaint as per schedule.
2) Perused the Chamber Summons, affidavit in support of chamber
summons, affidavit in reply of defendant No.1 and record. Heard
arguments advanced by Ld. Advocate for plaintiff, Ld. Advocate for
defendant No.1, Ld. Advocate for defendant No.2 and 3 and Ld.
Advocate for defendant No.4.
3) Ld. Advocate for plaintiff argued that during the pendency of the
suit defendants demolished the suit building. Therefore, by the
proposed amendment plaintiff wants to add consequential reliefs and
-- 1 of 4 --
2 CS 41620 IN SUIT NO.62215
want to delete the prayer which have become infructuous. The
proposed amendment is necessary for deciding real matter in
controversy and for avoiding multiplicity of suits. Therefore, Ld.
Advocate for plaintiff prayed that chamber summons be made
absolute.
4) On the other hand, Ld. Advocate for defendant No.1 to 4 argued
that the proposed amendment is likely to change the nature of the
suit. Prayers of plaintiff in the original suit already became
infructuous. Cause of action for filing of present suit is different than
the cause of action for amendment. Chamber summons is barred by
law of limitation. Therefore, Ld. Advocate for defendant No.1 to 4
submitted that chamber summons be dismissed.
5) From the matter on record it appears that plaintiff filed the
present suit for permanent injunction restraining defendants from
demolishing the suit building and from dispossessing plaintiff from
the suit premises without following due process of law and for other
reliefs. Admittedly, during the pendency of the suit, suit building and
suit premises is already demolished and therefore, the prayer clause
(a) in the present suit already became infructuous. However, plaintiff
has also prayed for mandatory injunction directing defendant No.1 to
provide transit accommodation and to enter into an agreement with
the plaintiff for permanent alternate accommodation, etc. By the
proposed amendment plaintiff wants to introduce subsequent events
regarding demolition of the suit building and wants to incorporate
consequential prayers. Considering the nature of the suit proposed
amendment appears necessary for deciding real matter in controversy
between the parties and for avoiding multiplicity of suits. It is settled
law that delay itself is not a ground for rejection of amendment.
Moreover, merits of the amendment cannot be considered at the time
-- 2 of 4 --
3 CS 41620 IN SUIT NO.62215
of deciding chamber summons for amendment. Therefore, there
appear no substance in the objection of defendants. Moreover, no
prejudice is likely to be caused to defendants if the proposed
amendment is allowed.
6) Considering the matter on record and above discussion present
chamber summons deserves to be made absolute. Therefore, court
proceeds to pass the following order :
ORDER
1) Chamber Summons No.416 of 2020 is made absolute.
2) Plaintiff shall carry out the amendment as per scheduleA within 14
days from the date of this order.
3) Chamber Summons No.416 of 2020 is disposed off accordingly.
Date :14/2/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :14/2/2023.
Typed on : 14/2/2023.
Draft received on:14/2/2023.
Checked on :14/2/2023.
Corrected & signed on :14/2/2023.
-- 3 of 4 --
4 CS 41620 IN SUIT NO.62215
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/2/2023. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
14/2/2023.
JUDGMENT/ORDER signed by P.O.
on
14/2/2023.
JUDGMENT/ORDER uploaded on 16/2/2023.
-- 4 of 4 --