Order 2

Order Details: Chamber summons
Pdf Text: Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 1 Order.
MHCC010037052018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 523 OF 2018
IN
S.C. SUIT NO. 1885 OF 2015
Mrs. Catherine Kurus Gnanamuthu ... Plaintiff
V/s.
Shri. G. Nicholas alias Shekhar ... Defendant
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 12/10/2023.
Appearance:-
Ld. Advocate Shri. Ashutosh Khandeparkar for the plaintiff.
Ld. Advocate Smt. Renuka Mehta for the defendant.
ORDER
1. Plaintiff has taken out this chamber summons for
amendment under Order VI Rule 17 of the CPC in the plaint. Defendant
filed reply affidavit and strongly opposed chamber summons.
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Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 2 Order.
2. I have heard Ld. Advocate Shri. Ashutosh Khandeparkar
for the plaintiff and Ld. Advocate Smt. Renuka Mehta for the defendant.
3. Plaintiff has filed present suit for simplicitor perpetual
injunction. Defendant is brother of deceased husband of plaintiff.
Plaintiff has included only Shop Premises No.435 in the plaint as suit
property and asserted that shop premises is in her possession and
defendant is disturbing her possession of the shop premises. She has
shown cause of action in the plaint in March-2015 and suit is filed on
20-08-2015.
4. Ld. Advocate for the plaintiff submitted that, amendment
sought in the plaint is to insert pleading and relief to recover the
possession of shop premises and to insert pleading and relief in respect
of one or more premises i.e. Residential Room No. 436, which seems to
be adjacent to the shop premises. Ld. Advocate for the plaintiff
submitted that defendant is trespasser in both the premises. He broken
the lock of both the premises and obtained possession of both the
premises after death of husband of plaintiff. Plaintiff asked the
defendant to vacate the residential premises and he refused to do so.
Thus, defendant is rank trespasser. The amendment is sought at pre trial
stage and no prejudice will cause to the defendant if the amendment is
allowed. Ld. Advocate for the plaintiff prayed to allow the chamber
summons. He relied on ruling of Hon’ble Bombay High Court in the case
of Sharayu Ramkrishna Mhatre and another V/s. Chandrakant
Ramkrishna Mhatre, Chamber Summons (L) No. 1075 of 2014 in Suit
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Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 3 Order.
No. 1964 of 2012 order dated 1st August, 2014.
5. Ld. Advocate for defendant took me through Para Nos. 9,
10 and 13 of the affidavit of plaintiff in support of chamber summons.
She argued that, there is inconsistent pleading and clever drafting to
bring the amendment within limitation in Para-9 and 10 of the affidavit.
It become clear from contents thereof that, defendant is gratuitous
licencee of the residential premises and to bring the suit within
jurisdiction of this court, plaintiff wants to insert pleading that
defendant is trespasser. The pleading in respect of shop premises sought
to be inserted is inconsistent with the earlier pleading. The proposed
amendment is changing nature of the suit. As per earlier pleading,
defendant is in possession of residential premises and shop premises
since prior to death of plaintiff’s husband. Thus, proposed amendment
is not within limitation. Plaintiff is trying to join cause of action in
respect of residential premises, which is also not within limitation.
Hence, amendment cannot be allowed. Therefore, Ld. Advocate for the
defendant prayed to dismiss the chamber summons.
6. I have considered the submission and perused the record. It
appears from the initial pleading in the plaint that, the plaintiff has
asserted her possession over the shop premises No.435 and sought relief
of perpetual injunction. While seeking amendment in respect of shop
premises, plaintiff has made inconsistent pleading to earlier pleading in
Para Nos. 9,10 and 13 of the affidavit. If plaintiff was in possession of
the suit premises at the time of filing of the suit, the affidavit and
proposed amendment is not disclosing that when the defendant broken
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Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 4 Order.
lock and took possession of the shop premises. In para-13 of the
affidavit, she has stated that defendant broken the lock of Shop No. 435
and Suit House No. 436, after death of her husband, but no dates are
given.
7. As per the death certificate on record, her husband died at
Kuwait on 11-04-2013. If the defendant would have broken lock and
taken possession of shop premises after death and prior to filing of the
suit, then question arises that why plaintiff has not disclosed said fact in
the suit initially and not sought relief of recovery of possession in the
suit. It shows that, plaintiff has suppressed said material fact in the
plaint. Plaintiff has annexed with affidavit, copy of NC report dtd.18-
08-2015, which shows that the quarrel was taken place between the
plaintiff and three persons, who were in possession of Shop Premises
No.435 on the instance of defendant . Contents of NC report shows that,
defendant inducted said persons in the shop premises since prior to two
years of the said incident. It shows that plaintiff was not in possession of
the shop premises and it was in possession of third person through
defendant. Despite of that, plaintiff had not inserted said fact and not
sought relief of recovery of possession in the plaint initially while
instituting the suit. Thus, it appears that the cause of action for seeking
recovery of possession of the shop premises was began to run prior to
2015 and without disclosing the date of breaking lock, plaintiff is
seeking amendment by way of inserting pleading and relief of recovery
of possession of shop premises by trying to bring the said relief within
limitation. In fact, the amendment sought by the plaintiff is barred by
limitation as the earlier pleading itself shows that plaintiff’s husband
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Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 5 Order.
had inducted defendant in the shop premises and residential premises.
8. So far as, amendment relating to residential room No. 436
is concerned, the contents of para No.9 of the affidavit shows that,
plaintiff’s husband allowed defendant to occupy the said room during
his life time. Those contents itself shows that defendant is in occupation
of residential room No. 436 since prior to death of plaintiff’s husband
i.e. prior to 11.04.2013. It also discloses that he is gratuitous licencee of
the plaintiff’s husband for the residential Room No.436. Even Para -10
of affidavit also impliedly infers that initially the plaintiff was thinking
to file separate suit for recovery of possession against the defendant
terming him as gratuitous licencee. Only on the legal advice by
advocate, she changed her mind and sought to amend the plaint by
labeling defendant as a rank trespasser. In view of contents of Para No.9
and 10 of the affidavits, it becomes clear that, defendant is gratuitous
licencee and therefore, the proposed amendment in respect of pleading
and relief about the residential room No.436 is not necessary to decide
the real dispute in controversy and not maintainable within the
jurisdiction of City Civil Court.
9. Another aspect is that plaintiff has filed the suit for
simplicitor injunction in respect of the shop premises. Plaintiff has
sought to amend the suit for recovery of possession of shop premises
and residential room and thereby trying to change the nature of suit
one from injunction to recovery of possession. Plaintiff is seeking
joinder of cause of action in respect of residential premises. The
possession of defendant in the residential room is since prior to 2013
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Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 6 Order.
and no date of alleged braking the lock of residential room is disclosed
in para-13 of the affidavit. Thus, the proposed amendment in respect of
residential room is also not appears to be within limitation. One more
NC report dtd. 08-03-2016 discloses that, the Residential Room No.436
is in possession of defendant and he had inducted one Velaswamy in the
said room prior to 11 months of March-2016, probably in the month of
February-2015. Plaintiff has taken out chamber summons after three
years and thus, the proposed amendment is beyond limitation.
10. For the above noted reasons, I hold that the proposed
amendment is beyond limitation and out of jurisdiction of Civil Court in
respect of residential room premises. The proposed amendment is
changing the nature of suit. Hence, the proposed amendment cannot be
allowed. I have gone through the ruling in Sharayu Mhatre (supra). In
the aforesaid set of facts, ruling is not helpful to plaintiff. Chamber
Summons deserves to be dismissed. In the result, I pass following
order:
- ORDER -
Chamber Summons No.523 of 2018 is dismissed and accordingly,
disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :12-10-2023 Gr. Bombay.
1. Dictated on : 12-10-2023
2. Transcribed on : 13-10-2023
3. Checked and Signed on : 16-10-2023
4. Delivered to Certified :
Copy Section on
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Ch.Sum No. 523/2018 in
S.C. Suit No.1885/2015. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16-10-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 12-10-2023
Judgment/Order signed by P.O. on 16-10-2023
Judgment/Order uploaded on 16-10-2023
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