Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CH-S 898-2019 IN SU 1045-19
CNR NO.MHCC01-004603-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.898 OF 2019
IN
L.C. SUIT NO.1045 OF 2019
Smt. Sheela Ramdhyan Chauhan ]....Plaintiff.
Versus
1. The Municipal Corporation for ]
Greater Mumbai & Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 18th June, 2019.
Mr. V.T. Dubey, Advocate for plaintiff.
Ms. Mhatre, Advocate for Defendant No.1./ MCGM.
Mr. Pratap Singh, Advocate for defendant No.2.
O R D E R
1. The plaintiff has taken out this Chamber Summons to amend the
plaint in order to bring on record the subsequent event of demolition of
the suit premises, to seek a declaration that said act is illegal and to
further seek the relief of its reconstruction.
2. Chamber Summons is opposed on the ground that the suit itself
does not survive since the suit premises is demolished. The amendment
sought is beyond the preview of Civil Procedure Code. The plaintiff may
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have a fresh cause of action and can file a separate suit. The suit
premises is demolished by following due process of law. Hence, the
amendment cannot be allowed.
3. Perused. Heard.
4. The Advocate for plaintiff submitted that, the plaintiff is
entitled to bring on record the subsequent event and to seek further
relief in respect thereof. Merely because the suit premises is
demolished the suit itself does not come to an end and plaintiff can
very well continue with the suit to seek Justice. He relied upon
Ratnagiri Hotels Pvt. Ltd. and Ors. Vs. The Municipal
Corporation of Greater Bombay and Ors., 2006(2) Mh.L.J. 661.
5. On the other hand, the advocate for defendant No.2
submitted that the Chamber Summons is devoid of merits. The suit
itself does not survive in view of demolition of the suit structure and
so the amendment in such suit cannot be allowed. According to
him, the plaintiff can institute a separate suit on the basis of fresh
cause of action.
6. The object of amendment is to allow the parties to bring on
record of their grievances connected with the lis so that the lis
between the parties can be decided effectively in one and the same
proceedings. Thus, it’s object it to reduce the multiplicity of
litigation.
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7. Keeping in view this object of the amendment, in a suit for
declaration and injunction to restrain defendants from demolishing
the suit premises, the plaintiff can very well seek amendment to
bring on record subsequent event of demolition of the suit premises
during pendency of the suit.
8. In Ratnagiri Hotel’s case the Hon'ble Bombay High Court
has held that,
"Counsel for the Corporation, however, contends that
nothing survives for consideration in the appeal, as
the offending structure has now been demolished for
which reason, the Appeal should be dismissed. This
submission, to say the least, is illadvised. Even if
the structure is demolished that does not denude the
plaintiff of his right to challenge the action which
was proposed at the relevant time, when the Suit
was instituted. If the plaintiff was to succeed in that
challenge, all other reliefs as would be warranted,
will have to be molded by the Trial Court at the end
of the trial. This obviously will be after the plaintiff
takes steps to amend the plaint and ask for
appropriate reliefs in that behalf. All those matters
will be relevant before the Trial Court."
9. Considering the observations of the Hon'ble Bombay High
Court and the above mentioned object of the amendment, I hold
that the plaintiff can be allowed to amend the plaint as sought, i. e.
as per the schedule to the Chamber Summons.
10. Though it is submitted by the Advocate for defendant that
plaintiff has got a fresh cause of action and thus can file a fresh suit,
in order to curtail the multiplicity of litigation such course need not
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be adopted by plaintiff when the plaintiff can legally amend the
plaint and go ahead with it. Consequently, I hold that Chamber
Summons needs to be allowed. Hence, the Order:
ORDER
1. Chamber Summons No.898 of 2019 is made absolute in terms
of prayer Clause (a).
2. The Plaintiff shall carry out the amendment within two weeks
from today and shall serve the copy of amended plaint on
both the defendants.
3. The plaintiff shall also supply a typed copy of amended plaint
to this Court.
4. Defendants are at liberty to file additional written statement/
replies.
5. Costs in cause.
Sd/
(A.N. MARE)
Judge,
18/06/2019 City Civil Court, Mumbai.
Dictated On : 18.06.2019
Transcribed on : 18.06.2019
HHJ Signed on : 18.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
19.06.2019 6.00 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
18.06.2019
JUDGEMENT /ORDER signed by
P.O. on
18.06.2019
JUDGEMENT /ORDER uploaded
on
19.06.2019
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