Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 4892020 IN SUIT 267110
MHCC010032212020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 489 OF 2020
IN
SUIT NO. 2671 OF 2010
Gajanan P. Hindlekar ] ...Plaintiff.
Versus
Best Undertaking and Another …Defendants.
Appearance:
Ld Advocate Sonali h/f Advocate Revankar for plaintiff.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 30/7/2022
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.2 and record.
Heard Ld Advocate for plaintiff. As the defendants and their Advocates
are absent they could not be heard.
3) Ld Advocate for plaintiff argued that by the proposed
amendment plaintiff wants to introduce the subsequent events which
transpired after filing of the suit and wants to incorporate one
additional prayer for transfer of electric meter in the name of plaintiff.
-- 1 of 4 --
2 CS 4892020 IN SUIT 267110
The above proposed amendment is not likely to change the nature of
the suit and it is necessary for deciding real question in controversy
between the parties. Therefore, Ld Advocate for plaintiff prayed that
chamber summons be made absolute.
4) From the affidavit in reply of defendant No.2 it appears
that the main objection of the defendant No.2 to the proposed
amendment is that trial of the suit is already commenced and the
proposed amendment is likely to change the nature of the suit and the
proposed amendment is not necessary for deciding real controversy
between the parties. Therefore, defendant No.2 in his say contended
that present chamber summons is not maintainable and be dismissed.
5) From the perusal of record it appears that plaintiff has
filed present suit for declaration, permanent injunction and mandatory
injunction. From the record it appears that on 6/1/2020 plaintiff
already filed his affidavit in lieu of examination in chief vide Exh.10. It
appears that the plaintiff tendered the present chamber summons on
6/2/2020. As such it is clear that plaintiff has taken out present
chamber summons for amendment of plaint after commencement of
trial. Therefore, in view of proviso to Order 6 Rule 17 of Code of Civil
Procedure it is necessary for the plaintiff to demonstrate that inspite of
due diligence he could not have raised the matter before the
commencement of trial. From the schedule of the proposed
amendment prima facie it appears that all the events which are sought
to be introduced by the proposed amendment had taken place before
commencement of trial/filing of affidavit of evidence at Exh.10 by the
plaintiff. From the affidavit in support of chamber summons it appears
that there is no explanation given by the plaintiff as to why he could
not have raised the present matter before the commencement of trial.
As the subsequent events which the plaintiff wants to bring on record
-- 2 of 4 --
3 CS 4892020 IN SUIT 267110
by the proposed amendment appears to have been occurred prior to
6/1/2020 and there is no explanation in the affidavit in support of
chamber summons about the fact as to why plaintiff could not have
raised the present matter before commencement of trial, this court
comes to the conclusion that plaintiff failed to demonstrate that
inspite of due diligence he could not have raised the present matter
before the commencement of trial. As such the proposed amendment
is hit by proviso to Order 6 Rule 17 of the Code of Civil Procedure and
therefore the present chamber summons is not maintainable.
6) Considering the matter on record and above discussion,
court hold that present amendment application/ Chamber Summons is
hit by proviso to Order 6 Rule 17 of Code of Civil Procedure and
therefore it is not maintainable. As such chamber summons is liable to
be dismissed. Therefore, court proceeds to pass the following order:
ORDER
1) Chamber Summons No.489 of 2020 is dismissed.
2) Chamber Summons No.489 of 2020 is disposed off accordingly
Date : 30/7/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on : 30/7/2022.
Checked on :1/8/2022.
Signed on :1/8/2022.
-- 3 of 4 --
4 CS 4892020 IN SUIT 267110
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
2/8/2022 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
30/7/2022
JUDGMENT/ORDER signed by P.O.
on
1/8/2022
JUDGMENT/ORDER uploaded on 2/8/2022
-- 4 of 4 --