Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/S 483/2020 1 IN L.C. SU NO.2449/2017
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS 483 OF 2020
CNR NO.MHCC010031592020
IN
L.C. SUIT NO.2449 OF 2017
CNR NO.MHCC010110272017
Parksite Welfare Association ]… Plaintiff
Versus
Designated Officer, Asst. Enginner (Bldg. & Fact.)
and Anr. ]...Defendants
Adv. Tanveer Shaikh for plaintiff.
MCGM Counsel Vyas with Adv. Rawade for defendant /MCGM.
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no.4)
DATED : 19th April, 2022
O R A L O R D E R
1. Perused Chamber Summons, affidavit in support thereof.
Say filed by the defendant / MCGM. Heard both the advocates at
length.
2. The advocate for plaintiff wants to amend the plaint as
because during pendency of the suit, the defendant / MCGM has
proposed to shift the members of the plaintiff to Mahul but plaintiff
wants to bring on record how Mahul is inhabitable, unliveable and area
is of full of pollution. The advocate for the plaintiff relied on the ratio
laid down in the case of State of Maharashtra V/s. Mr. Charudutta
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Ch/S 483/2020 2 IN L.C. SU NO.2449/2017
Pandurang Koli and Ors. In Writ Petition No.14102 of 2018 therein
the Hon'ble High Court held that
“6. A judgment of the Western Zone Bench of the National Green
Tribunal dated 18th December 2015 in the matter of Charudatt
Pandurang Koli V M/s Sea Lord and Ors (OA NO.40/2014) forms
the foundation of the Petitioners arguments about the toxic air
pollution in the region. The aforesaid proceeding before the National
Green Tribunal had been initiated by the local residents of
Ambapada and Mahul villages who were aggrieved by the
consequences of the air pollution on their health. The litigants before
the National Green Tribunal are not PAPs rehabilitated in Mahul,
but instead has been residing in Mahul, close to the site of the PAP
colony, for several decades. The Tribunal examined reports prepared
by KEM Hospital, Parel, which suggested that the respiratory
morbidity of people residing in Ambapada, Mahul Gaon and 4 other
areas within Chembur have significantly enhanced due to their
proximity to heavily polluting industries. At paragraph 25 of its
judgment, the National Green Tribula held that there is a perceptible
threat to the health of the residents of villages Mahul and Ambapada
due to prevailing air quality in the area.
Here in this case also, the contention of plaintiff that village Mahul is
the toxic air polluted area. Therefore, plaintiff do not want to accept the
alternative accommodation in the above said region.
3. The advocate for the plaintiff further relied on the ratio laid
down in the case of Revajeetu Builders and Developers V/s.
Narayanaswamy and Sons and Ors., (2009) 10 Supreme Court
Cases 84. Therein the Honble Supreme Court held that
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Ch/S 483/2020 3 IN L.C. SU NO.2449/2017
Factors to be taken into consideration while dealing with
applications for amendments
“63. On critically analyzing both the English and Indian cases, some
basic principles emerge which ought to be taken into consideration
while allowing or rejecting the application for amendment :
(1) whether the amendment sought is imperative for proper
and effective adjudication of the case;
(2) whether the application for amendment is bona fide or
mala fide;
(3) the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms
of money;
(4) refusing amendment would in fact lead to injustice or lead
to multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case;
and
(6) as a general rule, the court should decline amendments
if a fresh suit on the amended claims would be barred by
limitation on the date of application.
These are some important factors which may be kept in mind while
dealing with application filed under Order6 Rule17. These are only
illustrative and not exhaustive.
4. Here in this case, the amendments sought is seems to be
bonafide. The plaintiff wants to bring on record the further
development took place after filing of suit regarding the suit property. If
the amendment is allowed, nature of the suit will not be changed. So
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Ch/S 483/2020 4 IN L.C. SU NO.2449/2017
also, not change the character of the case. There is no question of
limitation also, therefore in my opinion, the above observations are
applicable in a present matter.
5. The advocate for the plaintiff further relied on the ratio laid
down in the case of Prem Bakshi and Ors. V/s. Dharam Dev and Ors.
(2002) 2 Supreme Court Cases 2. Therein the Honble Supreme Court
held that
“6. From the facts extracted above it would show that the appellants
only wanted to bring to the notice of the court the subsequent facts
and after amendment of the plaint, Respondent 1 would get an
opportunity to file written statement and he would be able to raise
all his defense. Ultimately if these points before the appellate court. It
cannot be conceived of a situation that the proposed amendment if
allowed would cause irreparable injury or failure of justice as the
remedy of REspondent1, as stated above, is by way of an appeal. We
are, therefore, of the view that the order allowing the amendment
would not come under clause (b).
Here in this case, plaintiff only wants to bring on record subsequent
facts and after amendment of plaint, defendant will get an opportunity
to file written statement. Therefore, no justice will cause to the
defendant if the proposed amendment is allowed.
6. The advocate for the defendant / MCGM opposed the
Chamber Summons and submitted that the alternate accommodation
which was adopted to the plaintiff at Mahul has been cancelled and
new alternate accommodation has been offered VIDEOCON ATHITHI
SHELTER which is far away from Mahul and in a livable condition.
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7. Here at this stage, it is not a question before me whether
Mehul is habitable area, livable area or not, it will be decided after
adducing evidence by parties. But the plaintiff wants to amend his
pleading and it is the development after filing of the suit. Therefore,
plaintiff has every right to bring before the court his strong case having
sufficient pleading. Basically if the amendment is allowed no hardship
will cause to the defendant / MCGM but if amendment is not allowed
there will be possibility of miscarriage of justice or irreparable injury to
any party. Therefore, certainly plaintiff is entitled for the amendment as
prayed. Considering this I pass the following order
O R D E R
1. Prayer clause (a) in terms of Chamber Summons No.483 of
2020 is made absolute and allowed.
2. The plaintiff is directed to carry out the amendment within
stipulated period.
3. The amended copy be serve to the defendant.
4. Chamber Summons No.483 of 2020 in Suit No.2449 of 2017
is disposed off accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 19.04.2022 Gr. Mumbai.
Dictated on : 19.04.2022
Transcribed on : 20.04.2022
Signed by HHJ on: 25.04.2022
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Ch/S 483/2020 6 IN L.C. SU NO.2449/2017
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.00 a.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
19.04.2022
JUDGMENT/ORDER signed by
P.O. on
25.04.2022
JUDGMENT/ORDER uploaded
on
05.05.2022
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