Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/s 908/2019 in S.C.Suit 5165/2012
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 908 OF 2019
IN
S.C.SUIT NO. 5165 OF 2012
CNR NO. :MHCC010046422019
Shivaji Mangesh Salvi & Ors. …. Plaintiffs
Versus
Akshta Anil Ghosalkar ….Defendant
Appearance:
Mr. P.B. Upadhyay i/b. Mr. Dharmendra Gupta, Advocate
for the plaintiffs.
Mr. Abhijit Tambe Advocate for the Defendant.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.4)
DATE : 24.09.2021
ORAL ORDER
1. The Chamber Summons is filed by the defendant to amend
the Written Statement and add para as stated in schedule I to the
Chamber Summons. The Chamber Summons is supported by affidavit of
Akshata Anil Ghosalkar. The defendant stated that the earlier Advocate
appearing on record not provided proper guidance and put up defence
in the Written Statement. The issues were framed on 07.05.2016. The
plaintiff did not adduce evidence. Therefore, evidence of plaintiff was
closed. Thereafter, the defendant adduced evidence on 02.04.2018. On
two occasions, the matter was placed for settlement, but settlement
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could not be arrived. The earlier Advocate returned the papers to the
defendant and on appointment of the present advocate, the defendant
came to know that the Written Statement needs to be amended, as the
suit property belongs to BMC. The father of defendant Mangesh Salvi
was working in BMC as clerk, therefore the suit premises was allotted to
him on rental basis on 01.12.1942. These facts are necessary to be
brought on record. Hence, prayed to allow the Chamber Summons.
2. The plaintiff filed reply through affidavit of Mr. Shivaji
Mangesh Salvi and has denied the contents of Chamber Summons. The
defendant in the evidence affidavit has admitted in para 3 that,
“3. At the further outset I say and submit that the terms and
conditions as setout in the family settlement Agreement dated
23.02.2012 entered into between the Plaintiff no. 1 to 4, and
one Mr. Shashikant M. Salvi and myself are still binding,
subsisting and I'm ready and willing to abide by the same.
The Original of the said family settlement Agreement dated
23.02.2012, is in the custody of the Plaintiffs. I am producing
the copy of the said Agreement. The Signatures appears on
the said Agreement is that of all the parties thereto including
me. I identify the same and the same may be taken on record
as Secondary evidence and marked as “Exhibit ”.
Therefore, now the defendant cannot take contrary
contentions. Hence, prayed to reject the Chamber Summons.
3. Heard Advocate Mr. P.B. Upadhyay for the plaintiffs and
Advocate Mr. Abhijit Tambe for the Defendant. I have gone through the
contents of Chamber Summons and reply supported by affidavit. I have
also gone through the record.
4. The evidence of the plaintiff was closed on 29.01.2018 as
plaintiff failed to adduce evidence. The defendant filed evidence
affidavit on 02.04.2018. The Advocate who is presently appearing on
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behalf of defendant filed Vakalatnama on 18.01.2019. Thereafter, the
present Chamber Summons is filed on 10.04.2019. The defendant has
relied on the xerox copy of the record of Register stating the particulars,
monthly rent, name of the tenant and other descriptions. The name of
deceased Mangesh Hanumant Salvi is shown in the said Register along
with the details of payment of rent etc. The plaintiff has denied the
reasons shown in the Chamber Summons on the ground that the
defendant has admitted in their evidence in para 3 about the family
arrangement.
5. Advocate Shri. Abhijit Tambe for defendant has relied on
authorities reported in :
i. Teotonio Faustino Vas & Anr. Vs. Ana Maria Rodrigues & Ors. :
2019(1) Mh.L.J. 668
That amendment of pleadings by the defendant ought to be
allowed where purpose of the amendment is to elaborate the
defence and to take additional plea in support of the case.
ii. Chakreshwari Construction Pvt. Ltd. Vs. Manohar Lal :
2017(5) Mh.L.J. 195
The Hon'ble Apex Court in para 14 has referred the principle
application as called out in decision Revajeetu Builders and
Developers Vs. Narayanaswamy & Sons & Ors. : 2009 Mh.L.J.
Online (S.C.) 12 in para 63 as under :
“63. On critically analysing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:
(1) whether the amendment sought is imperative for proper
and effective adjudication of the case;
(2) whether the application for amendment is bona fide or
mala fide;
(3) the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms
of money;
(4) refusing amendment would in fact lead to injustice or lead
to multiple litigation;
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(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case;
and
(6) as a general rule, the Court should decline amendments if
a fresh suit on the amended claims would be barred by
limitation on the date of application.
These are some of the important factors which may be kept in
mind while dealing with application filed under Order 6, Rule
17. These are only illustrative and not exhaustive”.
iii. Babarao s/o. Pandurangji Patil & Anr. Vs. Kalavati w/o
Rambhauji Sathawane : 2019(4) Mh.L.J. 255
In the facts of the application was fixed by the plaintiff to add
additional prayer to the suit pertaining to the decree of partition
and separate possession in the suit property. The suit was fixed for
declaration and permanent injunction in respect of properties of
the parties. The declaration was sought in respect of two will
Deeds and after written statement was filed, they sought
declaration in respect of another will. The application to amend
was filed after evidence was completed. The plaint already
contained specific pleading regarding the claim of equal right and
interest in the suit property. In the facts the Hon'ble High Court
held that on the basis of evidence already recorded, the trial Court
would have to examine whether the prayer for grant of decree of
partition and separate possession could be allowed. Thereby not
only multiplicity of litigation be avoided but the entire dispute
between the parties and the real questions in controversy would
be decided.
iv. Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria & Ors. : 2016
(3) Mh.L.J. 172
that admission made in written statement clarified or explained by
way of amendment.
v. Gurbakhsh Singh & Ors. Vs. Buta Singh & Anr. : 2019(1)
Mh.L.J. 481
In the facts suit filed in the year 1968 for declaration. The
application for amendment of plaint was filed. The Hon'ble High
Court held that the object of Order 6 Rule 17 of CPC is that the
Court should try the merits of the case and allow all amendments
that may be necessary for determining the real question in
controversy between parties provided it does not cause injustice or
prejudice to the other side.
6. In the Written Statement the plaintiff has raised objection
about the maintainability of the suit on the point of cause of action. In
para no. 4(vii) of the Written Statement to the answer of para no. 7 of
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the plaint, the defendant stated that the alleged family arrangement if
perused carefully one can easily make out that it was executed only for
the purpose to record the understanding arrived at between the
plaintiffs and defendant regarding distribution of their share in the suit
property in the event of sale of the suit premises. The defendant now
desires to incorporate defence about non joinder of necessary party and
that the suit for specific performance of the agreement is void on the
ground that the family settlement is not registered and the said
agreement cannot be enforceable by law.
7. I have gone through the authorities relied by the
defendant. Considering the nature of the suit and dispute between the
parties, the ratio of the above authorities is applicable to the present
facts of the case. The amendment sought is imperative for proper and
effective adjudication of the case. There is no mala fide intention on the
part of the defendant to file the present Chamber Summons. No
prejudice will cause to the plaintiff, as he can be compensated. The
plaintiff has not adduced evidence in the suit. Therefore, to decide the
real controversy between the parties, the amendment to add the
defence on the basis of the document of possession of the suit property
of deceased father needs to be brought on record.
8. The evidence of plaintiffs is closed and now it is for the
cross examination of defendant's witness. The defendant has collected
the document about the possession of the suit premises by deceased
Mangesh Salvi as a tenant of BMC through Right to Information Act by
application dated 28.02.2019. The defendant can raise any defence that
may be inconsistent with the other defences raised by her. Considering
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the nature of the suit, the above defence is necessary to be added to the
Written Statement to decide real controversy between the parties.
Hence, I hold that the amendment to the Written Statement will resolve
the real controversy between the parties. No prejudice will cause to the
plaintiffs. The plaintiffs can be compensated with cost. Hence, pass
following order :
ORDER
1. The Chamber Summons is allowed on payment of cost
of Rs.2,000/ (Rs. Two Thousand Only) to the Plaintiffs
to be paid within one month from the date of the order.
2. The defendant is allowed to carry out amendment
within limitation as stated in ScheduleI to the
Chamber Summons on payment of the above cost
within the above period.
3. Accordingly, Chamber Summons is disposed of.
(S.S. Nagur)
Date :24/09/2021 Judge
City Civil Court,
Greater Mumbai.
Declared on : 24.09.2021
Dictated on : 24.09.2021
Typed on : 24.09.2021
Checked & Signed on : 24.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27/09/2021 11.52 a.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
24/09/2021
Judgment/order signed by P.O on 24/09/2021
Judgment/order uploaded on 27/09/2021
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