Final Order 2

Order Details: Chamber summons
Pdf Text: 1
IN THE COURT OF
COURT 1 CITY CIVIL JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
CHAMBER SUMMONS/100514/2020
IN
SC SUIT NO.4254 OF 2013
Dr.Vikram K.Shekatkar ..Plaintiff
Versus
Mr.Anand Subramaniam ..Defendant
Ld. advocate Mr. Prit Chheda @ Mr.Nilesh Tated for the plaintiff
Ld. advocate Mr. Narayan for the defendant
ORAL ORDER DELIVERED ON 11/03/2021
1. By this Chambers summons the defendant interalia seek
permission to amend the plaint.
2. The learned counsel for the defendant submitted that the
earlier advocate has prepared a written statement, however
due to inadvertence has omitted to mention the facts which
now the defendant wishes to amend. It is also argued that
the defendant at the time of hearing of the suit observed and
found that vital facts were not pleaded. He would submit the
entire negotiations were done by his sister and the plaintiff’s
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father. The payments were also received by plaintiff’s father.
The plaintiff at no point of time was involved. The sister of
the defendant has handed over 20 lakhs in cash to the	₹
plaintiff as per demand of Mr Kishore against the sale
consideration. All these facts are important for the just
decision of the case. Hence prayed for allowing the chambers
summons.
3. The chambers summons is vehemently opposed by the
plaintiff. The learned counsel for the plaintiff argued that the
defendant failed to demonstrate that despite of exercise of
due diligence he was unable to make the present chambers
summons for amendment of the written statement before the
commencement of the trial. There is gross delay in filing the
chambers summons and the said delay is unexplained. By
way of proposed amendment, the defendant is seeking to
introduce entirely new set of facts alleged to have occurred
in 2011. He would submit that the evidence of the plaintiff
was completed and the defendant has filed his affidavit in
lieu of examination in chief. The plaintiff objected that the
certain paragraphs of the affidavit in lieu of examination in
chief are beyond the pleadings and thereafter, the chambers
summons for amendment came to be filed.
4. After going through the record of the case it is apparent that
the written statement was filed by defendant on 27
December 2013. The issues were framed on 5 July 2018.
Plaintiff filed his affidavit in lieu of examination in chief on 4
April 2019. The cross-examination of the plaintiff was started
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on 29 August 2019 and concluded on 24 September 2019.
The defendant filed his affidavit in lieu of examination in
chief on 20 December 2019. On 18th February 2020 plaintiff
filed purshis objecting to paragraphs 5, 7 to 14 of affidavit in
lieu of examination chief of the defendant. On next date i.e.
4 March 2020 the present chambers summons came to filed.
5. The argument of learned counsel for the defendant is that
the facts which the defendant wishes to incorporate by way
of amendment are essential. These essential facts were not
pleaded by the earlier advocate due to inadvertence. It is
easy to blame the earlier advocate in his absence. The earlier
advocate of the defendant is not party to this chambers
summons. The defendant cannot shift the blame over his
earlier advocate for not incorporating all the material facts
which according to him were essential. The defendant has
verified the written statement and declared that the contents
of paragraph 1 to 22 on merits are true and correct as per his
personal knowledge. Now it does not lie in the mouth of the
defendant to state that the earlier advocate inadvertently did
not incorporate those facts which he wish to introduce by
way of this chambers summons.
6. The learned counsel for the defendant argued that it is
settled law that the Courts should be extremely liberal in
granting the prayer for amendment of pleadings unless
serious injustice or irreparable loss is caused to the other
side. In support of his contention, he placed reliance upon
the following judgments of the Hon’ble Supreme Court: –
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a) Baldev Singh & Ors. Vs. Manohar Singh & Anr. (2006)
Insc 470(3 August 2006)
b) Mohinder Kumar Mehra vs Roop Rani Mehra in Civil
Appeal No. 1997 7017
7. I have considered the law laid down in the above cited
judgments. In the case of the Baldev (
supra) the Hon’ble
Supreme Court has made clear that court may allow
amendment if it is satisfied that inspite of due diligence, the
party could not have raised the matter before the
commencement of the trial. The same view has been
reiterated in the case of Mohinder (
supra). In the case of
Mohinder the amendment application was filed before the
evidence was led by the plaintiff. Therefore, the above cited
judgments are not helpful to the case of the defendant.
8. The learned counsel for the plaintiff submitted that the trial
has commenced and the defendant cannot file the
application for amendment unless he has demonstrated that
in spite of exercise of due diligence, he was unable to raise
the said fact before the commencement of the trial. In order
to support his contention, he placed reliance upon following
judgments: -
Vidyabai and others Versus Padmalatha and another (2009) 2
Supreme Court Cases 409.
Kishore Raghunath Pande and another Versus Narendra
Durlabji Shah 2012 (3)Mh.L.J 279
9. I have considered the law laid down in the above cited
judgments and the proviso to Order 6 Rule 17 CPC. There is
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nothing in the body of chambers summons to suggest that in
spite of exercise of due diligence the said facts which the
defendant wish to incorporate in the written statement could
not have been raised before the commencement of the trial.
As pointed above the cross-examination of the plaintiff was
completed and even the affidavit in lieu examination in chief
was filed by the defendant, thereafter, present chambers
summons came to be filed. Thus, in view of the law laid
down in the above cited judgments of Vidyabai and Kishore
that court’s discretion to allow such applications under Order
6 Rule 17 is taken away unless the conditions precedent
therefor is satisfied. Defendant failed to satisfy the
requirements of proviso to Order 6 Rule 17 of the CPC.
10. The learned counsel for the plaintiff further argued
that the defendant wishes to withdraw the admission of
payment of 1,450,000 by introducing the fact of payment	₹
of Rs. 20 lakhs in cash to Mr Kishore. The defendant is not
permitted to introduce new facts by withdrawing his
admission. In order to support his case he has placed reliance
upon the judgment of Hon’ble Bombay High Court in the
case of Suryakanta Ishwar Lohkare & ors. Versus Annapurna
Nilkanth Shende & anr. 2013 SCC Online Bom 1928. The
Hon’ble Bombay High Court held that the admissions in the
statement cannot be permitted to withdraw by amendment.
11. The defendant by the proposed amendment wishes to
withdraw the admissions in the written statement which is
not permissible. He can’t introduce new plea to alter his case.
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The proposed amendment changes the nature of pleadings of
the defendant. The proposed amendment is nothing but
abuse of process of law and malafide.
12. Thus, in view of the above discussion is apparent that
the chambers summons needs no consideration and therefore
it is expedient pass following order:-
ORDER
1. Ch/sum No.514/20 stands rejected subject to cost of
Rs.2,000/- to be paid to the plaintiff on or before next
date.
(M.SALMAN AZMI)
Judge,
Date: 11.03.2021 City Civil Court, Gr.Bombay
Dictated on : 11/03/2021
Transcribed on : 11/03/2021
Signed on : 18/03/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/03/2021 at 4.00 pm.
Mrs.T.C.Kamble
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Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
11/3/21
Judgment and order signed by P.O. 18/3/21
Judgment/order uploaded on 18/03/2021
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