Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons 502 of 2018
In
L.C.Suit No.1216 of 2017
MHCC010034872018
Vinayak Namdeo Koli ..Plaintiff
V/s
Vasant Yashwant Koli (Dharavikar) & Anr ..Defendant
Mr. C.P.Mishra adv. for plaintiff.
Mr. Nitin Satpute advocate for defendant no.1
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 2nd March,2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this chamber summons for
amendment of plaint under order 6 rule 17 of CPC.
2 According to plaintiff, plaintiff has filed this suit for
mandatory injunction directing defendant no. 2 to take appropriate
action of demolition of unauthorized work carried out by defendant
no.1 on the suit property. Plaintiff has taken out the notice of motion
no. 1740 of 2017 for urgent relief of injunction. This court temporarily
restrained the defendant no.1 from carrying out any construction on
the plot owned by the plaintiff bearing C.S.No. 635. Thereafter,
plaintiff has served the copy of the order to defendant no.1. Defendant
no.1 appeared alongwith his advocate and sought time to file affidavit
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in reply.
3 Originally there was a temporary structure admeasuring
about 30ft x30ft. on the suit premises. Defendant no.1 without
knowledge and consent of the plaintiff and defendant no.2 demolished
the said temporary structure and started illegal work of construction by
erecting iron frame work of pillar in place of the demolished structure
with a view to carry out construction of permanent structure. Plaintiff
had filed complaint to Dharavi Police station and also with defendant
no.2. Inspite the order of this Court defendant no.1 has continued the
unauthorized construction work. Defendant no.1 has illegally and
unauthorizedly constructed ground + first floor structure and increased
the height of the structure approximately 20ft. Due to the act of the
defendant the windows of the plaintiffs house are blocked. Plaintiff is
facing great hardship and inconvenience. Plaintiff has written the letter
through his advocate to defendant no.2. in the month of June, August
and December of 2017. However, defendant no 2. has not taken any
action.
4 Plaintiff further contended that defendant no. 2 had issued
notice U/s 488 of the MMC Act dated 22/05/2017 to the defendant
no.1 for carrying out inspection but till date defendant no.1 has not
taken any inspection.
5 According to plaintiff the said events as mentioned in the
affidavit and reply and also in the schedule of the chamber summons
are subsequent to the filing of the suit. Hence, those are necessary to
incorporate in the plaint. Hence prayed to allow the chamber
summons.
6 Defendant no.1 filed his affidavit in reply. Defendant no.1
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denied that he made unauthorized construction. Defendant denied that
by his act the windows of the house of plaintiff blocked. According to
defendant, defendant is law abiding person. Defendant has not made
construction after the knowledge of the order from this court.
Defendants house is in dilapidated condition i.e. roof was broken
down, plaster was broken down. The structure was old and wooden
pillar white ant affected . The said house use was dangerous for human
habitation. Therefore, defendant gave application to the Municipal
Corporation, Gr. Mumbai and seek permission for repairs. The repairs
are tenantable repairs. Hence no such permission is required . Hence,
defendant prayed to dismiss the chamber summons.
7 I have heard Mr. C.P. Mishra advocate for plaintiff and Mr.
Nitin Satpute advocate for defendant no.1.
8 Plaintiff has filed present chamber summons for
amendment of plaint. According to plaintiff,defendant has
unauthorizedly constructed the house. Even inspite of order of this
house, defendant constructed ground+first floor of the house. Thus,
the proposed amendment is in aspect subsequent events after filing of
the suit and they are necessary to incorporate in the plaint.
9 I have perused the schedule alongwith the affidavit in
support of the chamber summons. Also perused the documents
produced by both the parties. From the perusal of proposed
amendment it appears that amendment are in respect of bringing
subsequent events on record. The amendments are in respect of the
subject matter of the plaint. I find that by way of proposed amendment
nature of suit does not change. If the chamber summons made absolute
no prejudice will be caused to defendant. Still trial is not commenced.
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Hence, in such a circumstances, I find that the the amendments are in
respect of the subsequent events and they are necessary to be brought
on record. Therefore, chamber summons deserves to be allowed. With
this I pass following order:
ORDER
1 Chamber summons no. 502/2018 is hereby made
absolute in terms of prayer clause (a) of the
chamber summons.
2) Plaintiff is directed to carry the
amendment within 14 days.
3 Chamber summons is disposed of .
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 2/03/2019
Typed on : 2/03/2019
Signed by HHJ. : 2/03/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
4/03/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
2/03/2019
JUDGEMENT/ORDER signed by
P.O. on
2/03/2019
JUDGEMENT/ORDER uploaded
on
4/03/2019
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1 Plaintiff replied the said letter through his advocate dated
20/2/1998. The Court receiver by the letter dated 24/06/1998
addressed to the plaintiff alleging that the plaintiff illegally occupying
the unauthorized structure and unauthorizely carried out the
construction. The Court receiver called upon the plaintiff to hand over
the possession of the said portion and demolished the unauthorized
structure. Plaintiff gave reply dated 15/07/98 to the Court receiver and
denied the allegations. Thereafter, at the istance of Raj
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