Final Order 1

Order Details: Other
Pdf Text: Dt.03/11/2020
SU - 475/16
(HCTB)
CORAM : H.H.J SHRI.U. J. MORE(C.R.NO.8)
Adv. Mr. Sherekar with Adv. Akshay Kapadia for plaintiff present.
Adv. Mrs. Smita Chavan for Deft/MCGM present.
Order on Ch/s No. 603/2020 :-
Perused Chamber summons alongwith reply. Heard both sides at
length. This is the Chamber Summons praying to carry out the
amendment in the Plaint of Suit No. 475/16. It is contended that
in the month of August 2020, plaintiff acknowledged about the
Shop and Establishment Certificate issued to the predecessor in
the title by BMC for the business of Cycle repairing. He applied to
BMC under the provision of RTI on 04.09.2020 before the Shop
and Establishment Department to provide the copy of Shop and
Establishment Certificate. He received Shop and Establishment
Certificate from BMC which is at Exh.C-2. Thus, in short he
wants to amend this development in the body of plaint.
Defendant strongly objected as plaintiff's evidence is closed. Deft
have filed affidavit of evidence. The provision of Order-6 Rule 17,
provides that the burden is on the person to seek an amendment
after commencement of trial to show that inspite of due diligence
such an amendment could not have been sought earlier.
It is settle law that an amendment cannot claimed as matter of
right and under all circumstances. It is necessary to prove that to
the amendment is bonafide and it does not change nature and
character of suit.
It is admitted position that in this particular suit the evidence of
plaintiff is closed and evidence affidavit of deft/Corporation is
filed on record. The document which filed on record i.e Shop and
License which is regarding cycle business goes to the route of case
for which plaintiff has filed the suit. The record reveals that
the plaintiff got possession of document only in pandemic period
therefore there is no malafide intention to delay the trial by
making this prayer for amendment.
Plaintiff placed reliance on Civil Appeal No. 1669/19 and Ragu
John V/s S. Rayappan and Ors, 2001 to Supreme Court 472
with due respect the ratio of both the cases is applicable to the
case in hand.
Adv. Chavan for deft/ Corporation place reliance on Appeal From
Order No. 24836 Of 2018 of Hon'ble High Court with due
respect, the fact in this case are not identical to the case in hand.
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Thus, inspite of commencement of trial this is an exception to the
provision of Order 6, Rule-17 of Code of Civil Procedure, as
inspite of due diligence plaintiff could not raised the matter
before the commencement of trial. Therefore, if the Chamber
summons is allowed certainly it would not cause lost to other side
as sufficient opportunity would be given to the deft.
Hence, I pass the following order.
ORDER
1. Prayers (a) and (b) to Chamber Summons No. 603 of 2020
are made absolute subject to cost of Rs.2000/- to DLSA, Mumbai.
2. Plaintiff to carry out amendment within two weeks from
today.
3. Chamber Summons No.603 of 2020 is disposed off
accordingly.
Authenticated copies be given to the both parties.
Matter adjd to 24/11/2020 for Compliance/ R/E (P.H).
Judge
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