Final Order 1

Order Details: Chamber summons
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IN THE COURT OF SESSION FOR GREATER BOMBAY
CHAMBER SUMMONS NO.533 OF 2018
IN
SUIT NO.7578 OF 2002
HIGH COURT SUIT NO.1479 OF 2002
1. M/s. Nanabhoy Jeejeebhoy Pvt.Ltd.
A company incorporated under the
Complanies Act 1956 having their
Office at Noshirwan Mansion, Henry
Road, Colaba, Mumbai400 005.
2. Bombay Real Estate Development Company
Private Ltd., a company having its offices
At Noshirwan Mansion, Henry
Road, Colaba, Mumbai400 005. ....Plaintiffs
V/s
1. Mrs.Jaspal Balhar Basra, Indian
Inhabitant of Mumbai, aged about 60
years, residing at H/2, 43 Mahindra
Nagar, H.B.Road, Malad(E),
Mumbai400 097
2. Mr.Mandeep Singh Basra, Indian
Inhabitant of Mumbai, aged about 60
years, residing at H/2, 43 Mahindra
Nagar, H.B.Road, Malad(E),
Mumbai400 097
3. Gurpreet Singh Basra, Indian
Inhabitant of Mumbai, aged about 60
years, residing at H/2, 43 Mahindra
Nagar, H.B.Road, Malad(E),
Mumbai400 097
4. Mr.Harpreet Singh Basra,Indian
Inhabitant of Mumbai, aged about 60
years, residing at H/2, 43 Mahindra
Nagar, H.B.Road, Malad(E),
Mumbai400 097
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And all the defendants No.1 to 4 are
carrying on busisness at Gargi Gas
Agency, Malad(E), Mumbai97. .... Defendants
APPEARANCE:
Ld.Advocate Yatin Nagin Shah for plaintiff.
Ld.Advocate Girish Kedia for defendant.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 28th November, 2019
ORDER
Perused Chamber Summons alongwith affidavit and reply
tendered by defendant.
2. It is submitted by the plaintiffs that he has filed suit against
defendant for possession of suit property. It is further submitted that
the plaintiffs are the owners of entire land bearing
C.T.S.No.809/A/1/19/A/1/1/ 1/A/3/A/1(old CTS No.842/A) now
changed to CTS No. 809/A/ 1/19/ A/1/1/1/A/3/A/1 which
admeasures 140664.3sq. mtrs. which corresponds to and forms part of
Survey No.51 which includes suit property adm. area 500 sq.mtr. of
revenue Village Poisor, Tal. Borivali, Mumbai Suburban, District locally
known as Singh Estate, Samta Nagar, Kandivli (E). It is further
submitted by the plaintiff that suit was filed initially before Hon'ble
High Court Bombay and defendant has filed written statement in the
said suit. Thereafter, suit was transferred from Hon'ble High Court to
the Court of City Civil Court and thereafter on 22/8/2013 advocate for
the defendant had taken oral objection that suit property was not
properly described in plaint. It has further submitted that he had come
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to know that the CTS No.of the land which includes the suit property
amalgamated and changed to new CTS No.809/ A/ 19/ A/1/ 1/1/ A/3/
A/1 and accordingly in the year September 2013, Chamber Summons
No.1914 of 2013, was taken out by the plaintiffs and plaint was duly
amended on 30/10/2013 pursuant to the order dated 22/10/2013
passed in the said Chamber Summons. It is further submitted that the
plaintiff has observed that on 27/4/2012 and Order No.C./Karya
7A/LND/Po.Vi.S.R.B.4713 was passed by Collector on 21/8/2012 vide
Subdivision measurement register No.21/2012 of the Implementing
Authority i.e of the City Survey Officer, the said entire land which
includes the suit property, was further subdivided resulting in further
change in CTS No.of the said land. It is further submitted that now the
CTS No.809/A/19/A/1/1/1/A/3/A/1/1/A which admeasures 140664.3
sq. mtrs. It is further submitted that as per the property registered card
in respect of CTS No.809/A/19/A/1/1/1/A/3/A/1/1/A is already on
record as the same was exhibited in the affidavit of evidence
dtd.10/6/2014 but view of change in the description of entire land
pursuant to the order dated 27/4/2012 passed by Collector subdivision
measurement Register No.21/2012 dated 21/8/2012 of the City Survey
Officer and the Mutation Entry No.280, it has now become necessary to
amend the plaint accordingly. It is further submitted that the
amendment does not create any change in the nature of plaint or the
cause of action or implead new case. It is also just necessary in the
interest of Justice may be permitted to the plaintiff to amend the plaint
in terms of schedule annexed to the Chamber Summons.
3. The defendant opposed Chamber Summons by filing written
reply. He denied the entire contention in the Chamber Summons in
toto and contended that the suit property described in the plaint itself is
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vague and without any particulars. It is further contended by the
defendant that he had tendered written statement on record. Issues
were framed and plaintiff have filed their examination in chief under
O.XVIII R.4 of CPC and additional examination in chief include in the
document refer to rely upon by the plaintiff way back in the year 2014
therefore, the trial in the suit has already been commenced. It is further
contended by the defendant that under O.VI R.17 of CPC trial was
commenced in the suit and thereafter no application for amendment
shall be allowed.
4. It is further contended by the defendant that the plaintiff again
intend to bring the second amendment in respect of the order dated
21/8/2012 alleged to have been passed by the Collector. It is further
contended by the defendant that the bear perusal of the order and
schedule the same nowhere reflect the description of the suit property
therefore, the present amendment which sought to be inserted by the
plaintiff after commencement of the trial is exfacie barred by law of
limitation and not permitted by law and on this ground alone the
Chamber Summons is liable to be dismissed. It is further contended by
the defendant that the said amendment pertains to the area approx.
1,40,664.3 sq.mtrs. which know way make reference of the suit
property as now sought to be contended by the defendant. It is further
contended by the defendant that bear perusal of ExhA & B to the plaint
the suit property referred therein is totally mismatched to the
description provided under the present Chamber Summons. It is further
contended that the subject matter of the suit property is also vague,
evasive and without giving therein exact description of the suit property
and the boundaries which is one of the ground taken by the defendant
in the written statement. It has further contended that the amendment
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now sought to be introduced by the plaintiff is unwarranted, uncalled
and exfacie outside the provision of O.VI R.17 of CPC and barred by
law of limitation and no way connected or related to the suit property.
Lastly, it is prayed that Chamber Summons does not have any merit
therefore, the Chamber Summons may kindly be dismissed with costs.
5. Ld.Counsel for plaintiff submitted that subsequently as per the
order of Collector in the year 2012 the description of suit property is
changed and therefore, it is necessary to bring the new number of suit
property on record by way of amendment. It is further submitted that
the proposed amendment is formal in nature and no prejudice would be
caused to the case of defendant. Ld.Counsel for plaintiff drew my
attention towards the description of property and submitted that the
land was divided by Implementing Authority i.e. City Survey Officer. It
is submitted by counsel for plaintiff as per the order dated 21/8/2012
suit property is divided and therefore, it is necessary on the part of
plaintiff to bring the new number of property on record.
6. Per contra, Ld.Counsel for defendant submitted that the present
suit is filed by plaintiff against defendant in the year 2002 and
defendant had tendered their written statement on record. Ld.Counsel
for defendant drew my attention towards record and submitted that
issues are framed and plaintiff had tendered affidavit in lieu of
examination in chief. He submitted that the trial suit has already been
commenced and as per O.VI R.17 of CPC no amendment shall be
permitted after commencement of trial. Ld.Counsel for plaintiff further
pointed out that after the order passed by the Collector on 21/8/2012
plaintiff has taken out Chamber Summons in the year 2013 bearing
No.1914 of 2013 however, failed to mention entire order of Collector
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dated 21/8/2012 in the Chamber Summons. It is further submitted by
the counsel for defendant that Chamber Summons No.1914 of 2013
necessary amendment was permitted by the court in favour of plaintiff
by relying on order dated 21/8/2012 passed by Collector, however, the
plaintiff has failed to show due diligence while making prayer in the
Chamber Summons No.1914 of 2013 and applied again to incorporate
amendment as per the order of Collector on 21/8/2012 is at all not
permissible under O.VI R.17 of CPC. Lastly, it is prayed by the counsel
for defendant that the Chamber Summons may kindly be dismissed with
costs.
7. After hearing counsel for both the parties, I drew my attention
towards record. Admittedly, the present suit is filed by the plaintiff
against defendant in the year 2002. It is to be noted here the defendant
had also tendered written statement on record. Relying on the pleading
of the parties issues are framed by the Court below Exh.No.4 on
10/3/2014 and thereafter plaintiff had tendered affidavit of evidence of
P.W.No.1 vide Exh.No.5. As rightly pointed out by the counsel for
defendant that the trial is commenced and this submission is not
disputed by counsel for plaintiff at the time of argument. Admittedly,
as per O.VI R.17 of CPC amendment in the pleading shall not be
permitted after commencement of trial. Provided that unless the court
come to the conclusion that inspite of due diligence the party could not
have raised the matter before the commencement of trial. As per the
record and particularly the plaintiff has specifically mentioned in the
Chamber Summons that the Collector had passed an order and changed
City Survey No.on 21/8/2012. Thereafter, the plaintiff has tendered
Chamber Summons bearing No.1914 of 2013 however, failed to make
entire order in respect of suit property in the Chamber Summons. As
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per order in Chamber Summons bearing No.1914 of 2013 relying order
dated 21/8/2012 permission is granted to the plaintiff to carry out
amendment in respect of suit property. Thereafter, the plaintiff has
tendered evidence on record and after filing evidence plaintiff wants to
amend the suit relying on order dated 21/8/2012 it means the plaintiff
is having knowledge about the entire order but he has not due diligent
regarding the order passed by Collector dated 21/8/2012 and failed to
amend the suit by taking out Chamber Summons No.1914 of 2013.
Under such circumstances only inference that can be drawn the plaintiff
failed to show due diligence towards the order dated 21/8/2012 passed
by Collector and also failed to mention the contention of order
regarding suit property in Chamber Summons No.1914 of 2013 and
thereafter commencement of trial the plaintiff want to amend the suit
by way of proposed amendment by relying order dated 21/8/2012 but
O.VI R.17 of C.P.C. does not permit this court to grant permission for
amendment after commencement of trial and therefore, in the above
said reason I come to conclusion that the Chamber Summons does not
have any merit and I proceed to pass following order.
ORDER
Chamber Summons No.533 of 2018 is dismissed with costs.
Date:28/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 28/11/2019
Typed on :28/11/2019
H.H.J.Signed on :28/11/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
28.11.2019 at 5.30 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
28.11.2019
JUDGMENT/ORDER signed by P.O. on 28.11.2019
JUDGMENT/ORDER uploaded on 28.11.2019
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