Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/s.
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO. 580 OF 2020
IN
L.C.SUIT NO. 3255 OF 2018
Aarzoo Jehangir Shaikh …. Plaintiff
V/s.
MCGM & Ors. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 27/07/2023
Adv. Mr. A. R. Pandey for the plaintiff.
Adv. Mr. Dharmesh Vyas for the defendants/BMC.
ORAL ORDER
1. This chamber summons is taken out by plaintiff under
Order VI Rule 17 of the Code of Civil Procedure for seeking
permission to carry out amendment as per schedule.
2. Read Chamber summons, reply filed by the
defendants/BMC. Heard both the sides.
3. It is the case of plaintiff that he preferred Appeal
From Order (ST) No. 17972/2019 against rejection of ad-
interim order dated 21 s t December 2018. Defendants without
waiting for appeal period demolished suit premises on very next
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date i.e. 22n d December, 2018. Secondly, plaintiff got one file in
her Cupboard of old documents in respect of suit premises.
Plaintiff brought this fact on record by way of amendment. On
the contrary, it is the contention of the defendants/BMC that
plaintiff praying for order for mandatory injunction for
reconstruction of premises. Notice under section 351 of the
MMC Act is for illegal construction work done by the plaintiff.
Defendants/BMC followed due process of law. Proposed
amendment change the nature of the suit.
4. On perusal of record and proceeding it appears that
during the pendency of the suit for declaration and injunction
present chamber summons for carrying out necessary
amendment in respect of subsequent events is filed by plaintiff.
Suit is posted for Notice of motion reply by defendants/BMC.
Hence, it is clear from the record that issues are yet to be
framed and trial yet to be commenced. As per order dated
21.12.2018 ad-interim protection in respect of suit premises
was rejected by this Court. It is not disputed by the
defendants/BMC that suit premises is demolished by BMC.
These facts happened during the pendency of the suit i.e.
subsequent facts.
5. It is specifically contended by the plaintiff that she
found important old documents in respect of the suit premises
in her cupboard. It is settled principle of law that documents
which are necessary for the just decision of the suit permitted to
be brought on record subject to proof of document. Therefore,
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documents sought to be brought on record by the plaintiff is
permitted, then it will not cause any prejudice to the rights of
defendants/BMC, because defendants/BMC is having very right
to rebut that documents at proper stage of the suit. It is settled
principle of law that subsequent events permitted to be brought
on record. The proposed amendment sought by the plaintiff
found to be necessary for the just decision of the suit.
6. At this juncture, learned advocate for the
defendants/BMC submitted before the Court that proposed
amendment changes the nature of the suit. Hence, amendment
should not be permitted.
7. On the other hand, it is submitted on behalf of the
plaintiff that amendment does not change the nature of the suit.
Evidence is yet to be given. Even if application for amendment
belatedly, such belated amendment cannot be refused. Plaintiff
placed his reliance on following case laws:-
(a) Hemlata Harish Bhatia & Anr. V/s. Vallabhdas Lalchand
Dhamanmal (Writ Petition No.4346 of 2017 dated
22.12.2018)
(b) Surender Kumar Sharma V/s. Makhan Singh (Civil Appeal
No.6400 of 2009 decided on 18.09.2009)
(c) Kamal Kumar Shivkishan Agrawal V/s. Navnirman
Developers and ors. Decided on 03.03.2020)
(d) Olga Rodrigues and ors V/s. Christopher Pinto and ors.
(Chamber summons No. 145 of 2015 decided by the
Hon'ble High Court on 03.04.2017)
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(e) Rajesh Kumar Aggarwal and Ors.V./s. K. K. Modi(Civil
Appeal (Civil) 5350-5351 of 2002 decided on 22.03.2006)
(f) G. Narendra Kumar V/s. Smt. G. Manjula (Writ Petition
No.17402 of 2018 dated 16.08.2018)
8. On going through the rival submissions and as
discussed above that the proposed amendment in respect of
alleged demolition of the suit premises is subsequent event
happened during the pendency of the suit. Issues are yet to be
framed and trail yet to be commenced. Therefore,bar provided
under provisio of Order VI Rule 17 of the Code of Civil
Procedure is not attracted in the present chamber summons.
Being a subsequent event no new cause of action is constituted
by a separate pleading. Therefore, submissions raised on behalf
of the defendants/BMC are not acceptable one.
9. The proposed amendment are subsequent event. So
far as amendment in respect of documents and pleading thereof
is concerned, plaintiff placed reasonable explanation in that
effect. Apart from this, defendants/BMC is having very right to
counter this document and pleading by way of consequential
amendment ,if any. Hence, proposed amendment does not
change the nature of the suit as well as does not constitute new
cause of action. The amendment sought by the plaintiff is
necessary to resolve the real controversy between the parties.
Hence, in view of Order VI Rule 17 of the Code of Civil
Procedure, I proceed to pass following order.
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ORDER
Chamber Summons No. 580/2020 is allowed as follows:
(a) Plaintiff is permitted to carry out proposed
amendment in the plaint within 14 days from the
date of this order and to file amended plaint within
statutory period.
(b) Both the parties to take note of this order.
(c) Cost in cause.
(d) Chamber Summons No. 580/2020 is disposed off.
Date- 27/07/2023 (R. B. Parvekar)
Ad-hoc Judge, City Civil Court
Gr. Mumbai
D i c t a t e d o n : 2 7 / 0 7 / 2 0 2 3
Ty p e d o n : 2 7 / 0 7 / 2 0 2 3
s i g n e d o n :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/07/2023 1130 a.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
27/07/2023
JUDGMENT/ORDER signed by
P.O.on
28/07/2023
JUDGMENT/ORDER uploaded on 28/07/2023
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