Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C.S.No.523 of 2020
CNR:MHCC01-003719-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.523 OF 2020
IN
L.C.SUIT NO.2701 OF 2018
Mr. Sohail B. Wazifdar .. Applicant/
Defendant No.1
In the matter between
Mrs. Santosh Balichwal .. Plaintiff
V/s.
Mr. Sohail B. Wazifdar & Ors. .. Defendants
Appearance:-
Adv. K. D. Jha for plaintiff.
Adv. Gonsalves for defendant No.1 and 2.
Adv. Pradip Patil for MCGM/defendant No.3.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 31/10/2023.
ORDER
This Chamber Summons is taken out by the defendant No.1
to carry out amendment in the written statement as per schedule
annexed to the Chamber Summons.
2 The learned advocate for the defendant No.1 submitted
that in this suit, issues were framed on 21/03/2020. However, the
plaintiff has not filed her affidavit of evidence on record. The defendant
No.1 had issued a letter calling upon the plaintiff’s advocate for
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inspection of the documents. The defendant No.1 was required to apply
under the Right to Information Act so as to verify the allegations in the
plaint. After getting the documents, the defendant No.1 has got
knowledge about the facts of the case which are to be incorporated by
way of amendment in the written statement. All these facts are
necessary to be brought on record. The learned advocate for the
defendant No.1, therefore, vehemently submitted that the amendment
is necessary to decide the controversy and it is formal in nature. The
learned advocate for the defendant No.1 in support of her submissions
placed reliance on-
1) North Eastern Railway Administration, Gorakhpur V/s.
Bhagwan Das (Dead) by Lrs., (2008)8 SCC 511,
2) Revajeetu Builders and Developers V/s. Narayanswamy
and Sons and Ors., (2009)10 SCC 84,
3) Life Insurance Corporation of India V/s. Sanjeev Builders
Private Limited and Anr., 2022 SCC OnLine SC 1128,
4) R. K. Patel Engineers and Contractors Pvt. Ltd. V/s. City
and Industrial Development Corporation of Maharashtra
Ltd., 2014(5) Mh.L.J. 380.
3 On the other hand, learned advocate for the plaintiff
strongly resisted the Chamber Summons on the ground that the suit
was filed on 10/09/2018 and written statement was filed on
10/12/2018 by the defendant No.1. He submitted that nothing is made
clear by the defendant No.1 as to when the RTI application was made
and when copies have been received. He submitted that the proposed
amendment is irrelevant and inconsistent and same is not necessary for
the decision of the suit. It is submitted that application is filed only to
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prolong the matter. It is, therefore, submitted that the Chamber
Summons is liable to be dismissed with costs.
4 After considering the submissions of both sides, I have
carefully gone through the entire facts and circumstances on record. I
have also gone through the ratio laid down in the case laws cited supra.
It reveals that the defendant No.1 wants to amend the written
statement by incorporating the facts after para. 60 of the written
statement. Having regard to the nature of amendment, it reveals that
the proposed amendment is nothing but explanatory in nature. Apart
from the explanation of the plaint averments, the defendant No.1 is
trying to elaborate those facts. After considering the ratio laid down in
the case laws cited supra, one thing which can safely be gathered is that
the Court should take liberal approach while considering the
amendment, if the same is sought before commencement of the trial.
Moreover, while considering the amendment in the written statement,
in my view, even inconsistent pleas can also be allowed to be taken on
record by way of amendment.
5 So far as commencement of the trial is concerned, as can be
seen from the record, issues are framed on 21/03/2020. However, till
this date, affidavit of evidence of the plaintiff is not filed on record.
Therefore, in the absence of affidavit of evidence on the part of the
plaintiff, there cannot be any doubt that the trial in this suit is yet not
commenced.
6 So far as the proposed amendment as mentioned in the
schedule appended with the Chamber Summons, the defendant No.1,
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after para (60U), sought to add further documents in the list from Sr.
No. 34 to 67. However, the defendant No.1 cannot be allowed to
produce further documents as mentioned in clause II of the schedule
under the garb of amendment by invoking the provisions of Order 6
Rule 17 of the Code of Civil Procedure. In fact, remedy lies under Order
8 Rule 1-A(3) of the Code of Civil Procedure, if the defendant No.1
wants to produce further documents which can be sought by seeking
leave of the Court as provided under Order 8 Rule 1-A(3). Thus,
considering all these circumstances, I am of the view that the Chamber
Summons deserves to be partly allowed. In the result, following order is
passed.
ORDER
1 Chamber Summons No.523 of 2020 is partly allowed.
2 The defendant No.1 is allowed to carry out the amendment
in the written statement to the extent of para (60U) of the schedule.
3 The defendant No.1 shall comply the order within 14 days
from the date of this order.
4 Chamber Summons is disposed off accordingly.
Date:31/10/2023. (R. M. Mishra )
Judge, City Civil Court,
Gr.Mumbai.
Dictated on :31/10/2023.
Typed on :31/10/2023.
Signed on :31/10/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31/10/2023 05.15 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
31/10/2023.
JUDGMENT/ORDER signed by P.O.on 31/10/2023.
JUDGMENT/ORDER uploaded on 31/10/2023.
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