Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summons No. 610/2018 in S.C. Suit No. 1115/2014
CNR MHCC010041192018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS NO. 610 OF 2018
IN
SHORT CAUSE SUIT NO. 1115 OF 2014
M/s. Chawla Highway Carriers ]..Plaintiff
Versus
Mrs. Mahrukh Shabbir Jhanjharya ]
and 5 Others. ]... Defendants
Coram : M. S. Deshpande, Judge,
(Court Room No. 5).
Date : 21st June, 2018.
Mr. Amogh K. Karandikar, Ld. Advocate for for the plaintiff.
Ms. Rawade, Ld. APP for the defendant no. 3 Corporation.
Ms. J. P. Thakkar, Ld. Advocate for defendant no. 6.
ORDER
1 In a suit for declaration and injunction, the plaintiff has
taken out this chamber summons seeking amendment to the plaint. By
the proposed amendment, the plaintiff wishes to add certain averments
in respect firstly, obstructions raised by the defendant nos. 4 to 6 at the
rear entrance of the suit premises, secondly closing of entry to the
common toilet available on the first floor of the suit building and
thirdly, for illegally raising of the third floor by the defendant nos. 4 to
-- 1 of 4 --
2 Chamber Summons No. 610/2018 in S.C. Suit No. 1115/2014
6. The plaintiff also wishes to aver that the notice u/sec. 527 of
Mumbai Municipal Corporation Act has already been issued to
defendant no. 3 Corporation. The plaintiff wants to make a
consequential prayer for mandatory injunction against the defendant
no. 3 Corporation to take action for removal of obstruction, so raised at
the rear entrance and in front of the common toilet, etc.
2 The defendant nos. 4 to 6 have opposed the chamber
summons by contending that the suit filed by the Power of Attorney
Holder is not tenable and that the Deed of Power of Attorney is not
proper. The defendant nos. 4 to 6 have denied raising any obstruction
or closing the entrance of toilet. According to them, the plaintiff has no
locusstandi to institute the suit and further to seek its amendment. The
plaintiff is setting out a new case. According to them, two eviction suits
are pending against the plaintiff and therefore, the present chamber
summons has been taken out.
3 Both the Ld. Advocates have made submissions in
consonance with the contentions raised by the rival parties.
4 Considering the rival submissions and the nature of suit, it
appears that the amendments, so proposed, are in the form of
averments regarding the events subsequent to the date of suit. They
will not change the nature of suit. The amendment has been proposed
diligently. The hearing of the suit is not yet started. The amendment
appears necessary for determination of the real matter in controversy.
Consequently, the relief sought by the proposed amendment is not
barred by law of limitation.
-- 2 of 4 --
3 Chamber Summons No. 610/2018 in S.C. Suit No. 1115/2014
5 However, so far as the amendment proposed to be added
by paragraph no. 5(a) and marked as Portion “A” in red ink in the
schedule annexed to the chamber summons, is not related to the matter
in controversy or is not within the scope of present suit. The same
relates to the alleged unauthorized construction carried out by the
defendant nos. 4 to 6 after acquiring the suit building by raising an
additional floor without permission of the defendant no. 3 Corporation
and letting the same out to the third persons. Therefore, the same
being beyond the scope of matter in controversy in the present suit, can
not be allowed. The defendant nos. 1 to 3 have not yet filed their
written statement. Therefore, they will get an opportunity to answer
the amended version. Similarly, the defendant nos. 4 to 6 will get an
opportunity to answer the amended portion by filing additional written
statement. Therefore, the following order is passed :
ORDER
1. The chamber summons no. 610 of 2018 is made absolute in terms
of prayer clause (a) except Portion “A” marked in red ink.
2. Parties to bear their own costs.
(M. S. Deshpande)
AdHoc Judge,
Dated: 21.06.2018 City Civil Court, Mumbai.
Typed on : 21/06/2018
Checked by HHJ on : 22/06/2018
Signed by HHJ on : 22/06/2018
-- 3 of 4 --
4 Chamber Summons No. 610/2018 in S.C. Suit No. 1115/2014
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME :22.06.2018 at 5.00 p.m.
NAME OF STENOGRAPHER :Mrs. G.K. Kotawadekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. No. 5
Date of Pronouncement of
JUDGMENT/ORDER
21.06.2018
JUDGMENT/ORDER signed by
P.O. on
22.06.2018
JUDGMENT/ORDER uploaded
on
22.06.2018
-- 4 of 4 --