Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO.MHCC01-003684-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.725 OF 2019
IN
S.C. SUIT NO.1794 OF 2015
Krishnabai Vasudeo Ghate and Ors. ]....Plaintiffs.
Versus
Haresh Vithal Koli and Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.09)
DATE : 3rd April, 2019.
Ms. Sarita Dahivile, Advocate for plaintiffs.
Mr. H.B. Manav, Advocate for Defendants.
O R D E R
1. The plaintiffs have taken out this Chamber Summons to correct
the House number appearing in plaint paragraph 1 and prayer Clauses
(a) and (b) of the plaint on the ground that while mentioning the
House number there is a typographical error creeped in.
2. The Chamber Summons is opposed on the ground that plaintiffs
are seeking amendment after almost 4 years of filing of the suit. The
trial has begun and therefore, amendment cannot be allowed. No
sufficient ground and or case is made out by the plaintiffs. If the
amendment is allowed it will result in allowing the plaintiffs in setting
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up an all together new case.
3. Perused. Heard.
4. In order to decide this Chamber Summons perusal of entire plaint
will be required.
5. In title of the plaint the plaintiffs have mentioned their residence
as House No.47/E. The residence of defendant Nos.1 and 2 is also
mentioned as 47/E. In plaint paragraph No.1 and prayer Clauses (a) and
(b) the House number mentioned is “47/”. In plaint paragraph No.4 the
House number mentioned is “47/E”. In plaint paragraph 4 the plaintiffs
have pleaded that the House number “47/E” is acquired by father of
plaintiff Nos.2 to 4 and defendant No.3 and 4, and said House includes
Devghar i.e. the suit premises.
6. Considering the pieces of pleadings mentioned above there
requires no further probing or assessment to understand that House
No.”47/” mentioned in plaint paragraph No.1 and prayer Clauses (a) and
(b) of the plaint is nothing but an inadvertent typographical error.
7. The objection as to delay will not stand in way of allowing the
plaintiffs to correct the House number, as mere delay is not a ground to
allow amendment which is necessitated by the circumstances.
8. Defendants have claimed that the trial has begun and thus there is
bar to allow the amendment.
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9. The Roznama of the suit indicates that my Predecessor has framed
issue at Exh.4 and the matter was adjourned for recording of evidence.
The plaintiffs sought time to change the advocate. Thereafter, on
29.1.2019 my predecessor has imposed costs of Rs.2000/ on the
plaintiffs and the stage of the suit is altered for hearing of Notice of
Motion. Thus it is evident that actual stage of the suit was for hearing the
Notice of Motion. In such circumstances, it may not be correct to say that
the trial has begun though the Court has proceeded to frame the issues,
despite pendency of the Notice of Motion. It is the settled legal position
that the act of the Court shall harm none. Applying said principle, the
amendment as sought needs to be allowed so as to decide the real
controversy between the parties.
10. Considering the pleadings in paragraph No.4 of the plaint, it is
clear that since inception plaintiffs are claiming that the suit property is
part of House No. 47/E. Thus by this amendment n new case is being
pleaded by the plaintiffs. Thus the objection to amendment on this count
is also not sustainable. Hence, the Order:
ORDER
1. Chamber Summons No.725 of 2019 is made absolute in terms of
prayer Clause (a).
2. The plaintiff to carry out amendment within a week.
3. Costs in cause.
Sd/
(A.N. MARE)
Judge,
03/04/2019 City Civil Court, Mumbai.
Dictated On : 03.04.2019
Transcribed on : 03.04.2019
HHJ Signed on : 04.04.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
04.04.2019 11.15 a.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 09)
Date of Pronouncement of
JUDGEMENT /ORDER
03.04.2019
JUDGEMENT /ORDER signed by
P.O. on
04.04.2019
JUDGEMENT /ORDER uploaded
on
04.04.2019
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