Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S-881/2019 (Su. No.3970/11)
MHCC010045092019
Presented on : 23/04/2019
Registered on : 23/04/2019
Decided on : 17/01/2024
Duration : 4 Y 8 M 25 D
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
CHAMBER SUMMONS NO.881/2019.
IN
S. C. SUIT NO.3970/2011
Swapna Sadanand Ayare
(Through Lrs) ...Plaintiffs
V/s.
Kamala Shankardas Tanwani & Ors. ...Defendants
Appearance :-
Adv. Mr. Rahul Thorat for plaintiffs.
Adv. Mr. Noman Jaffery for defendant No.2.
Adv. Mr. Meezan Patel for defendant No 3(a).
Coram : His Honour Judge
Shri. R. R. Bhagwat
Court Room No. : 65.
Date : 17/01/2024
ORDER
The plaintiffs have taken out the present Chamber
Summons for allowing the plaintiffs to amend the plaint and to
annex documents to the plaint as per schedule. Perused
affidavit in support, affidavit in reply of defendants No. 3(a)
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and 3(b), affidavit in reply of defendant No.2 and suit
proceeding. Heard Ld. Counsel Rahul Thorat for the plaintiffs,
Adv Mr. Noman Jaffery for defendant No.2 and Adv Mr. Meezan
Patel for the defendant No.3(a).
2. It is contention of the plaintiffs that original plaintiff
and defendant No.6 executed tenancy agreement dated
29.09.2009 in respect of suit premises. Original plaintiff had
lodged the said tenancy agreement for registration and for
payment of stamp duty in relation thereto. Original plaintiff
could not pay stamp duty due to financial conditions and
unavoidable circumstances. Therefore, new tenancy
agreement dated 15.12.2016 was executed between the
original plaintiff and defendant No.6. Deed of rectification
dated 20.02.2017 came to be executed between original
plaintiff and defendant No.6. The plaintiffs have specifically
contended that earlier tenancy agreement dated 29.09.2009
has become time barred. Now, the plaintiffs want to
incorporate this subsequent development in their pleadings by
way of amendment and by placing these documents on
record.
3. Defendant No.2 has raised objection that tenancy
agreement dated 29.09.2009 was in existence prior to filing of
the present suit. This is not subsequent event or
development. Proposed amendment is beyond the scope and
purview of the Order VI Rule 17 of the C.P.C. The plaintiff had
not lodged the tenancy agreement for the registration at all.
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There is no question of becoming the instrument time barred
and registered document cannot be exhibited. Document in
respect of the immovable property must be registered. In
order to fill lacuna, original plaintiff registered the tenancy
agreement as original tenant and he made defendant No.6 to
execute tenancy agreement dated 15.12.2016. He prayed for
dismissal of Chamber Summons.
4. Defendant Nos.3(a) and 3(b) have also raised
similar objections in their affidavit in reply. If amendment is
allowed, serious prejudice would be caused to the defendants
and right accrued would be taken away as a result of
amendment. Application is barred by limitation. The plaintiff
has not shown diligence to file this Chamber Summons. He
has denied that plaintiff had lodge tenancy agreement dated
29.09.2009 for registration. It is mandatory under section 55
of the Maharashtra Rent Control Act,1999 to register the
agreement and therefore, the plaintiff has taken out the
present Chamber Summons to fill up lacuna. He denied
financial problem of the plaintiff preventing him from
registration of the tenancy agreement dated 29.09.2009.
Present Chamber Summons is barred by limitation. Earlier
Chamber Summons No.174 of 2017 and present Chamber
Summons are not maintainable. They also prayed for
dismissal of Chamber Summons with compensatory cost.
5. Advocates for both sides advanced arguments as
per their respective contention.
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6. Considering rival submissions and material on
record, the plaintiffs are relying upon unregistered tenancy
agreement dated 29.09.2009 to claim tenancy rights in
respect of the suit premises and to seek declaration that
defendants No. 1 to 5 are trespassers in respect of the suit
premises. It is pertinent to note that the plaintiff has pleaded
in para 7 of the plaint that defendants No.1, 2, 4 and 5
surrendered their tenancy rights in the suit premises in favour
of defendant No.6 landlady on 25.07.2009 by accepting
substantial amount. In short, alleged end of tenancy rights of
defendants No.1, 2, 4 and 5 is the development enabling the
plaintiff and defendant No.6 to enter into tenancy agreement
dated 29.09.2009 in respect of the suit premises. If all these
aspects are considered, tenancy agreement dated 29.09.2009
is basis of the claim made by the plaintiffs.
7. As tenancy agreement dated 29.09.2009 is not
registered as per section 55 of the Maharashtra Rent Control
Act,1999, there are legal hurdles in reading this tenancy
agreement in evidence. The original plaintiff and defendant
No.6 entered into registered tenancy agreement dated
15.12.2016 to over come this difficulty and they want to read
this instrument retrospectively forming basis of the plaintiffs
claim. Though the plaintiffs have claimed it as a subsequent
development making them to amend the plaint, it is an
express attempt on their part to cure defects in their case by
bringing in picture new tenancy agreement to replace the
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earlier one.
8. If such sort of course is permitted, parties would try
to create admissible piece of evidence in present with
retrospective effect to replace inadmissible piece of evidence.
It is relevant to note that provisions in the C.P.C. insist on
specific pleadings by the parties with direction to them to
produce relevant documents on record. If such course is
allowed to followed, it would be an act to allow the plaintiff to
lead evidence by subsiding several provisions of law like Order
XI and Order XIII Rule 1 of the C.P.C. In short, proposed
amendment does not satisfy requirement of proviso to Rule 17
of Order VI of the C.P.C. It is an endeavour to rectify defects in
earlier instrument by way of new instrument. For all these
reasons, Chamber Summons is liable to be dismissed. Hence, I
pass the following order -
ORDER
1. Chamber Summons No.881 of 2019 is dismissed.
2. Proceeding of Chamber Summons No.881 of 2019 is
closed.
(R. R. Bhagwat)
Date-17.01.2024 Judge,City Civil Court,
Court Room No.65
Gr. Bombay.
Dictated on : 17.01.2024
Typed on : 17.01.2024
Signed on : 17.01.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.01.2024 at 12.12 p.m. Samruddhi Jadhav
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with
Court Room No.65)
HHJ SHRI. R. R.
Bhagwat(C.R.No.65)
Judge.,City Civil Court,
Date of pronouncement of
/Order
17.01.2024
Order signed by P.O. on 17.01.2024
order uploaded on 25.01.2024
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