Final Order 2

Order Details: Chamber summons
Pdf Text: 1 CS 4372020 in S.C. SU 9152013
MHCC010029122020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 437 OF 2020
IN
S.C. SUIT NO. 915 OF 2013
Janata Market Welfare Association
and Others ] ...Plaintiffs.
Versus
Prakash Chnadrakant More
and Others ]…Defendants.
Appearance:
Ld Advocate Shubham Bane for Plaintiffs.
Ld Advocate Mangal Kadam for Defendant No.5/MHADA.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 19/9/2022
ORAL ORDER
1) Plaintiffs have taken out present chamber summons for
allowing them to amend the plaint as per schedule and for initiating
legal action u/s.193, 211 of Indian Penal Code u/s.340 of Criminal
Procedure Code against office bearers of defendant No.4 for making false
statement in affidavit in reply.
2) Perused the chamber summons, affidavit in support of
chamber summons and record. It appears that inspite of opportunity
defendants and respondent failed to file reply to the present chamber
summons and therefore, chamber summons was proceeded without reply
of defendants and respondent. Heard arguments advanced by Ld
Advocate for plaintiffs and Ld Advocate for defendant No.5. As
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defendants No.1 to 4 and respondent were absent they could not be
heard.
3) Ld Advocate for plaintiffs argued that earlier plaintiff had
taken out chamber summons No.811/19 for allowing him to amend the
plaint for adding the present respondent as party to the suit. As the
defendant No.4 had appointed the respondent as Developer plaintiff had
taken out the said chamber summons. However, in the reply affidavit of
the said chamber summons defendant No.4 had denied that defendant
No.4 appointed respondent as Developer for the redevelopment of the
suit building. The documents received by plaintiff under RTI which are at
Exh.F Colly to the present affidavit in support of chamber summons
reveals that defendant No.4 had appointed the respondent as Developer.
As the defendant No.4 had made false statement in affidavit in reply and
mislead the court chamber summons No.811/19 was dismissed.
Therefore, it is necessary to allow the plaintiff to amend the plaint as
sought and to initiate action of inquiry u/s. 340 of the Code of Criminal
Procedure against office bearers of defendant No.4 for making false
statement on oath. Therefore, Ld Advocate for plaintiff prayed that
chamber summons be made absolute.
4) On the other hand Ld. Advocate for defendant No.5 argued
that earlier plaintiffs had taken out chamber summons No.811/19 for
identical amendment as sought in the schedule of present chamber
summons. As per order dt.23/8/19 the said chamber summons was
dismissed. Therefore, present chamber summons for the identical/same
amendment which was not granted in chamber summons No.811/19 is
not maintainable. From the matter on record it appears that defendant
No.4 had simply denied the contention in the chamber summons.
Therefore, in the present matter it is not expedient in the interest of
justice to direct any inquiry. Prima facie no offence also appears to be
committed by defendant No.4. Therefore, Ld Advocate for defendant
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No.5 prayed that notice of motion be dismissed.
5) In the present matter it is admitted fact that plaintiffs had
taken out the chamber summons No.811/19 for allowing them to amend
the plaint as per schedule. Perusal of the schedule of chamber summons
No.811/19 and schedule of the present chamber summons reveals that
both the schedule of amendment are identical/same. Admittedly, the
chamber summons No.811/19 was dismissed and plaintiff has sought
same amendment which is already rejected as per order dtd.23/8/19.
The present chamber summons also does not come within purview of
review of the order in chamber summons No.811/19. Therefore, prayer
of the plaintiff for allowing him to carry out amendment as per schedule
which is already dismissed as per order in chamber summons No.811/19
is not maintainable. As such the prayer of plaintiff for allowing him to
amend plaint as per schedule is liable to be dismissed.
6) So far as the prayer clause (b) of the chamber summons i.e.
prayer for initiating legal action u/s. 193, 211 of Indian Penal Code
u/s.340 of Criminal Procedure Code against office bearers of defendant
No.4 is concerned, from the affidavit in support of chamber summons
No.811/19 prima facie it appears that plaintiff had contended therein
that tenants of MHADA building appointed respondent for
redevelopment. In the affidavit in reply, the defendant No.1 to 4 had
denied that the tenants of MHADA had appointed the respondent for the
redevelopment. Thus, from the matter on record prima facie it appears
that there was no pleading of the plaintiff that defendant No.4 had
appointed respondent as developers and there is nothing that defendant
No.4 had not denied said fact. As such from the matter on record prima
facie it appears that there is no clear material on record to show that the
defendant No.4 made any false statement in that regard. As such prima
facie there appear no substance in the contention of the plaintiff that
defendant No.4 made false statement on oath.
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7) Moreover, from the matter on record and considering the
nature of the suit the prosecution of office bearers of defendant No.4
does not appear expedient in the interest of justice and for public at
large. It is settled principle of law that court may order prosecution
u/s.340 of Code of Criminal Procedure only when prosecution is
expedient in the interest of justice and for public at large. Considering
the matter on record and the above discussion court find that plaintiff
has not made out any case which satisfy the court that it is in the interest
of justice and necessary to be make an inquiry or to show that defendant
No.4 had committed offence of perjury. As such the prayer clause 'b' of
the chamber summons is devoid of merit and liable to be dismissed.
8) Considering the matter on record and above discussion
court find that the present chamber summons is devoid of merit.
Therefore, it is liable to be dismissed. Hence, court proceeds to pass the
following order:
ORDER
1) Chamber Summons No.437/2020 is dismissed.
2) Chamber Summons No. 437/2020 is disposed off accordingly.
Date : 19/9/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on: 19/9/2022.
Typed on : 19/9/2022.
Checked on :20/9/2022.
Corrected & Signed on :20/9/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/9/2022. 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
19/9/2022.
JUDGMENT/ORDER signed by P.O.
on
20/9/2022.
JUDGMENT/ORDER uploaded on 21/9/2022.
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