Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 708 OF 2019
IN
SUIT NO. 2958 OF 2012
(CNR NO. MHCC01-003634-2019)
Kiran Manohar Wagle ...Applicant/Plaintiff
V/s.
1. Mr.Chaitanya Manohar Wagle & Ors. ...Defendants.
Appearances:
Ld. advocate Vijay Dighe for plaintiff.
None present for defendants.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 24/09/2021.
ORDER
This is a chamber summons taken out by the plaintiff for making
amendment in the plaint. The defendants resisted this chamber
summons by filing their reply.
2. Heard learned counsel on behalf of the plaintiff. Advocate for
defendants were not present for hearing on the chamber summons
despite of directions given by this court. Read the present chamber
summons and reply of the defendants thereon.
3. The learned counsel on behalf of the plaintiff has submitted that
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the present suit is filed against the defendants for partition and separate
possession of the suit property. At the time of filing of the present suit,
the plaintiff have inadvertently not specifically averred about the mense
profit while drafting of the suit. Moreover, after filing of the suit, the
plaintiff came to know that the defendant no.1 sold out the furniture
and fixture of the suit property. Therefore, the present chamber
summons taken out by the plaintiff for making amendment as per
schedule enclosed with this chamber summons.
4. The learned counsel on behalf of the plaintiff has further
submitted that if this proposed amendment is to be allowed then the
nature of the suit will not change. Moreover, it will not surprise to the
defendants. Therefore, the present chamber summons may kindly be
granted.
5. On perusal of the reply filed on behalf of the defendants it
appears to me that the defendants have submitted that the present
chamber summons is filed by the plaintiff to delay the entire process to
adjudicate the present suit and to cause physical and mental
harassment to the defendants. In the present suit, the issues were
already framed. The matter was posted for evidence of the plaintiff. But
the plaintiff instead of filing evidence, the plaintiff has filed chamber
summons bearing No.300/2018 for framing additional issues and
thereafter the plaintiff subsequently not pressed the chamber summons
No.300/2018. Therefore, the said chamber summons was disposed off
by this Court. The defendants have further submitted that the present
chamber summons came to be filed on behalf of the plaintiff after
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framing of issues. Therefore, at this delay time, the present chamber
summons of the plaintiff is not maintainable. On these grounds, the
defendants have requested that chamber summons of the plaintiff may
kindly be dismissed.
6. After rival pleadings of both the parties and on perusal of the
record it appears to me that the present suit came to be filed for
partition and separate possession of the suit property. The Court has
framed issues on 19/06/2017. Thereafter, the plaintiff has filed
chamber summons No.300/2018 on 12/04/2018 for framing additional
issues. Thereafter, subsequently plaintiff has not pressed chamber
summons No.300/2018 on 14/06/2018. Therefore, the said chamber
summons has been disposed off by this Court. The present chamber
summons came to be filed on behalf of the plaintiff on 20/10/2018.
7. The learned counsel on behalf of the plaintiff has relied on the
judgment of the Supreme Court of India in the case of Surender Kumar
Sharma V/s. Makhan Singh, reported in LAWS(SC)-2009-9-45 and in
the Judgment reported in LAWS(MAD)-2017-5-27of High Court of
Madras decided on May 05, 2017 in Rengarajan V/s. Rajendran. In both
the judgments of Hon’ble Supreme Court and Madras High Court have
observed that mere delay and latches in making the application for
amendment cannot be a ground to refuse amendment.
8. On scrutiny of the schedule alongwith chamber summon and in
the light of observations of the above citations cited on behalf of the
advocate for plaintiff, it appears to me that if this chamber summons is
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to be allowed then nature of the suit will not be changed. Moreover, it
will not cause hardship to the defendants. Therefore, I inclined to allow
this chamber summons taken out by the plaintiffs as prayed for. Hence,
I proceed to pass following order.
ORDER
1. Chamber Summons No. 708/2019 is hereby allowed as prayed for.
2. The applicant and his advocate are hereby directed to carry out
proposed amendment as prayed within stipulated period.
3. Costs in cause.
3. Chamber Summons No.708/2019 is disposed off accordingly.
Sd/-
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :24/09/2021. Gr. Mumbai
Dictated on: 24/09/2021
Transcribed on:24/09/2021
HHJ signed on:24/09/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
27/09/2021 at 11.00 a.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
24/09/2021
Judgment/order signed by P.O. on 24/09/2021
Judgment/order uploaded on 27/09/2021
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