Final Order 1

Order Details: Chamber summons
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.899 OF 2019
IN
S.C.SUIT NO.1609 OF 2013
1. Riyad Rashid Oomerbhoy,
2. Roohi Oomerbhoy Chetan Jaikishan,
3. Ismail Nazir Shakoor, ... Plaintiffs
Versus
1a. Mrs.Dureshwar Salim Begmohammed,
2. Abubakar SalimBegmohammed,
3. Mrs.Tanveer Nazir Munshi,
4. Miss.Salma nazir Munshi ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 11th JUNE, 2019
Advocate Mr. Joshi for Plaintiffs.
Advocate Mr.P.D.Gandhi for Defendant no.1(a) and 2.
Advocate Ms. Nidhi for Defendant no.3 and 4.
O R D E R
1. This Chamber Summons is taken out by the plaintiff for
amendment in the plaint as well amendment in Notice of Motion
No.1662/2018 as per the schedule A and B annexed to the Chamber
Summons. It is further prayed that by allowing the Chamber Summons
be allowed to make consequential amendments pursuant to the liberty
granted by the Court vide order dated 08/03/2019 in Notice of Motion
No.2572 of 2018.
2. Plaintiff Riyad Rashid Oomerbhoy has filed this affidavit in
support of Chamber Summons contending that pursuant to the liberty
-- 1 of 8 --
:2: CH/S.899/19 IN SUIT1609/13
granted by this Court vide order dated 08/03/2019 in Notice of Motion
in Notice of Motion No.2572 of 2018. Plaintiffs are intending to rely
upon the contentions raised in the plaint and contentions raised in
affidavit which was filed in support of notice of Motion no.1662/2018
and Notice of Motion No.2572/2018. It is contended that the
amendment is sought by plaintiffs vide schedule annexed to this
Chamber Summons and those amendments are in respect of vital facts
and events which had occurred in the year, 2018 in the pendancy of this
suit. According to plaintiffs, the facts which are mentioned in schedule
of Chamber Summons are necessary to be brought on record for logical
end of the suit.
3. It is contended that the defendants are admittedly aware of the
facts mentioned in schedule A annexed to the chamber summons.
However, plaintiffs being the carriage of the suit are liable and duty
bound to bring the said facts and events on record before hearing and
final disposal of the suit. According to plaintiffs, nature of the suit will
not be changed if the proposed amendment will be allowed for bringing
on record the facts which came to the knowledge of the plaintiffs after
filing of notice of motion Nos.1662/2018 and 2572/2018. Proposed
amendment will not change the nature of the suit and cause of action of
the suit. Further the amendments sought in the Chamber summons is
in the aid of the main prayers of above suit and no new reliefs are
sought by way of proposed amendment.
4. Defendant no.2 has resisted the Chamber Summons by filing his
affidavit in reply. Defendant no.2 has denied all the contentions raised
in the affidavit filed in support of this Chamber summons and affidavit
filed in support of Notice of Motion Nos.1662/2018 and 2572/2018. As
-- 2 of 8 --
:3: CH/S.899/19 IN SUIT1609/13
contended by defendant no.2, this Chamber Summons seems to have
taken out to extensively amend the plaint as well as amend and add
prayers to NM NO.1662/2018. This Chamber Summons is purportedly
to be filed pursuant to the liberty granted vide Order dated 08/03/2019
passed in Chamber Summons No.2572/2018. However, on perusal of
said order, it becomes clear that the Court has granted liberty to
plaintiffs only in respect of carrying out amendment in Notice of Motion
No.1662/2018. However, plaintiffs have deliberately mislead the order
passed by the Court and they are attempting to mislead this Court by
seeking extensive amendment in the plaint.
5. It is alleged that plaintiffs are seeking to bring on record
completely false, baseless and malafide allegations, events and
averments which hare not in any manner germane to decide the suit.
Further it is alleged that the plaintiffs are attempting to tarnish
reputation of defendant no.2 by seeking to bring on record the
allegations and averments from proposed amendment. Further
plaintiffs have stated that amendment is sought with respect to vital
facts facts that they have occurred after filing of the Notice of Motion
Nos.1662/2018 and 2572/2018. However, those averments and
allegations are already on record in the forms of affidavits which were
filed in support of Notice of Motion Nos.1662/2018 and 2572 of 2018.
According to defendant no.2 in any event, said averments and
allegations are irrelevant and immaterial to the suit and are not in any
manner aid in determination of the real questions in controversy before
the Court.
6. As contended by defendant no.2 if the proposed
amendment would be allowed it will amount to introducing a new case
and cause of action, completely different from the reliefs sought in the
-- 3 of 8 --
:4: CH/S.899/19 IN SUIT1609/13
suit. Further the suit has been filed for administration of the Wakf and
for removing the defendant nos.1 and 2 a Mutawallis and adding the
plaintiffs in place thereof. It is alleged that by filing aforesaid two notice
of motions now plaintiffs are intending to carry out amendment in the
plaint and they are intending to change nature of suit as well as they
are intending to alter the cause of action. It is contended that already
plaintiffs have carried out amendment in the plaint vide order dated
03/12/2018 passed in Chamber Summons No.1844/2018. As such the
amendments sought to be brought were already known to the plaintiffs
at the time of filing of previous Chamber Summons. Defendant no.2
has denied the contentions raised by plaintiffs in the affidavit filed in
support of Chamber Summons.
7. I have heard Advocate Mr.Joshi for Plaintiffs, Advocate
Mr.P.D.Gandhi for Defendant no.1(a) and 2 and Advocate Ms.Nidhi for
Defendant no.3 and 4. I have carefully perused the plaint. On giving
serious consideration to the arguments advanced before me, it is
noticed by me that this Chamber Summons is taken out by plaintiffs, as
per the liberty granted by the Court while passing order dated
08/03/2019 in Notice of Motion No.2572/2018. Whether the Court has
granted liberty to plaintiff to take out Chamber Summons for extensive
amendment in the plaint is the question which can be replied by
referring the order dated 08/03/2019 passed by my learned
predecessor. While passing said order my learned predecessor has
observed that “in such circumstances I hold that plaintiff has no prima
facie case and no balance of convenience lies in their favour. The
plaintiff would not suffer any irreparable loss, if the reliefs sought in the
Notice of Motion No.1662/2018. Therefore, I have recorded negative
findings of issue no.1 to 3 and I hold that this Notice of Motion will
-- 4 of 8 --
:5: CH/S.899/19 IN SUIT1609/13
have to be dismissed with observation that plaintiffs are at liberty to
make appropriate prayers in the main Notice of Motion to seek the
reliefs based on the said work sheet given by the contractor Mr.Mustak
Shaikh.”
8. On plain reading of the observations of my learned
predecessor, it becomes clear that liberty is granted to plaintiffs only to
seek amendment for appropriate prayers in Notice of Motion
No.1662/2018 to seek reliefs based on the worksheet given by
contractor Mr.Mustak Shaikh. At this juncture it becomes necessary to
point out here that it was argued by Adv.Mr.Gandhi on behalf of
defendant no.2 that Court has not granted liberty to plaintiffs to amend
the plaint and therefore, Chamber Summons cannot be allowed for
amendment in the plaint. When advocate Mr.Gandhi has argued to that
effect the Court has raised the query that whether the amendment in
notice of motion can be carried out without making amendment in the
plaint. That time this Court also has raised query that whether the
prayers can be made in notice of motion without making such prayers
in the plaint. Those queries were raised by the Court due to the fact
that interim reliefs are always to be granted on the basis of main
pleadings from the plaint. In respect of queries raised by the Court,
advocate Mr.Gandhi submitted that unless there are prayers in main
plaint the interim reliefs cannot be sought and granted, however it was
strongly argued by advocate Mr.Gandhi that my learned predecessor
has not granted liberty to plaintiff to amend the plaint and therefore,
plaintiffs cannot be permitted to amend the plaint. It was argued on
behalf of plaintiffs that proposed amendment is necessary for bringing
on record the substantial material facts which are very necessary for just
and proper decision of the suit.
-- 5 of 8 --
:6: CH/S.899/19 IN SUIT1609/13
9. I have carefully perused the schedule A and B annexed to
the Chamber Summons and I have perused the plaint. On perusal of
plaint, it is noticed that already the plaint is amended and after said
amendment the length of plaint is 31 pages. However on perusal of
schedule A and B annexed to this Chamber Summons it is noticed that
plaintiffs are intending to amend the plaint for 22 pages by schedule A
and further they are intending to amend the plaint for five pages by
schedule B. If copies of documents annexed to the said Chamber
Summons counted of documents the total length of proposed
amendment with documents goes to show that plaintiffs are intending
to amend the plaint by 65 pages. I have already pointed out that length
of amended plaint is about 30 pages and now plaintiffs are intending to
increase its length by 65 more pages. Thus, it becomes clear that
plaintiffs are intending to bring total new facts on record. It cannot be
permitted because already observed by my learned predecessor has
granted liberty to plaintiffs to amend only original Notice of Motion
No.1662/2018 for seeking reliefs based on the worksheet given by
contractor Mustak Shaikh. The paragraph Nos.32F and 32G of proposed
amendment which are referred in schedule A are material as regard to
the worksheet given by contractor Mr.Mustak Shaikh. On perusal of
schedule B, it is noticed by me that contents of para 22A and 22B of
schedule B are only relevant in respect of said worksheet given by
contractor Mr.Mustak Shaikh. Thus, by praying for proposed
amendment in remaining paragraphs from schedule A and schedule B,
plaintiffs are intending to bring total new theory on record. Any how,
even though my learned predecessor has not granted liberty to plaintiffs
to amend the notice of motion, I find that the amendment in the plaint
is necessary and unless the plaint is amended the reliefs from amended
notice of motion no.1662/2018 cannot be granted. Hence for giving
-- 6 of 8 --
:7: CH/S.899/19 IN SUIT1609/13
fair chance to plaintiffs to claim reliefs in the notice of motion on the
basis of pleadings from plaint, I find that plaintiffs are entitled only to
restricted amendment. Hence, I proceed to pass following order.
O R D E R
1. Chamber Summons no.899 of 2019 is partly allowed and
Plaintiffs are permitted to amend the plaint by adding para
nos.32F and 32G only from schedule A and they are permitted to
amend NM No.1622 of 2018 by adding only paragraph nos.22A
and 22 B from schedule B annexed to the Chamber Summons.
2. As consequential effect, Plaintiffs are permitted to amend the
plaint and Notice of Motion no.1662 of 2018 for adding prayers
B1 to B8 referred in schedule B annexed to the Chamber
Summons.
3. Plaintiffs are directed to carry out proposed amendment within
stipulated time provided by law and they are directed to serve
copies of proposed amendment upon Defendants of the matter.
4. Plaintiffs are further directed to file typed copy of amended plaint
before the Court so that court will not be required to have the
hurdles of the riders for understanding the pleadings from plaint.
Sd
(K.P.NANDEDKAR)
11/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 11/06/2019
Transcribed on : 13/06/2019
Signed by HHJ on : 17/06/2019
-- 7 of 8 --
:8: CH/S.899/19 IN SUIT1609/13
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19/06/2019 12.10PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 11/06/2019
Judgement/order signed by P.O on 13/06/2019
Judgement/order uploaded on 19/06/2019
-- 8 of 8 --