Final Order 2

Order Details: Chamber summons
Pdf Text: : 1: Chamber Summons No.995-19
CNR NO. MHCC010052012019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS NO.995 OF 2019
in
L.C. SUIT NO. 2182 OF 2017
Greta Fernandes. ]...Plaintiff.
Versus
M.C.G.M. & Anr. ]..Defendants.
Appearance:
Shri. Niranjan Vaghela, Ld Advocate for plaintiff.
Smt. Soraan; Ld Advocate for defendant no.1/MCGM.
Shri Vijay Gupta, Defendant no.02 in person.
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 23rd OCTOBER, 2021.
ORAL ORDER
1. Plaintiff has taken out this Chamber Summons for allowing
her to amend the plaint as per schedule.
2. Perused the Chamber Summons, affidavit in support of
same, reply of defendant no.1, plaint and documents relied by plaintiff.
Heard Learned advocate for plaintiff, Learned advocate for defendant
no.1 and defendant no. 2 Vijay Gupta in person.
-- 1 of 5 --
: 2: Chamber Summons No.995-19
3. Learned Advocate for plaintiff argued that by the proposed
amendment plaintiff want to bring on record matter which is in the
nature of explanation to the plaintiff’s claim that suit premises exists
since prior to 1964 i..e prior to datum line and documents which were
not available at the time of filing of suit which came to his knowledge
after filing of the suit. Proposed amendment is necessary for the
purpose of determining the real question in contraversy. The proprosed
amendment is not likely to change the nature of suit. Trial of the suit is
yet to be commenced. PreTrial amendment is to be library allowed.
Merits of the amendment cannot be considered at this stage. Therefore,
the Learned advocate for the plaintiff prayed that Chamber summons be
allowed. The Learned advocate for the plaintiff kept relience on the
following citations : i) Sampath Kumar V/s. Ayyakannu and Another,
(2002) 7 S.C.C.,559. ii) Rameshkumar Agarwal V/s. Rajmala
Exports Private Limited and Others,(2012) 5 S.C.C.337. Court has
gone through the observations therein.
4. On the other hand Learned Advocate for the defendant
no.1 argued that the proposed amendment changes the nature of the
suit and it is not necessary for deciding the real question in contraversy
between the parties. Hence, Chamber Summons be dismissed.
5. Defendant no. 2 – Vijay Gupta in person argued that no
new fact is sought to be introduced by the proposed amendment and all
the facts and the documents sought to be brought on record by the
proposed amendment are old facts and documents which were within
-- 2 of 5 --
: 3: Chamber Summons No.995-19
knowledge of the applicant. Proposed amendment is not necessary for
determining the real question in controversy. Plaintiff has taken out
present Chamber Summons only to protract the litigation and therefore,
it is not bonafide. It will cause prejudice to the defendants. Hence,
Chamber Summons be dismissed.
6. Perusal of the plaint reveals that plaintiff has filed the
present suit for declaration that the impugned notice issued under
section 351 of MMC Act and impugned order passed in pursuance of
impugned notice pertaining to the suit premises in ‘Gulmanor’ building
is illegal and bad in law. It appears that the plaintiff presented the
plaint in the year 2017. From the perusal of plaint, it appears that it is
the case of plaintiff that the suit premises is in existence since prior to
1964 i.e. prior to ‘datum line’. By the proposed amendment plaintiff
want to bring on record certain facts and documents which are in the
nature of explanation/clarrification to the plaintiff’s claim. The
proposed amendment does not change the nature of the suit and it
appears necessary for the purpose of determining the real question in
contraversy between the parties. The Chamber Summons appears to be
bonafide. Moreover no prejudice is likely to be caused to the
defendants if the proposed amendment is allowed. Refusal of the
proposed amendment may cause prejudice to the plaintiffs. Primafacie
proposed amendment appears to be bonafide and legitimate. Trial of
the suit is also not commenced. Merits of the amendment cannot be
considered at this stage.
7. In the case of Rameshkumar Agarwal V/s. Rajmala
Exports Private Limited and Others,(2012) 5 S.C.C.337 cited Supra,
-- 3 of 5 --
: 4: Chamber Summons No.995-19
Hon’ble Apex Court observed that, “It is clear that while deciding the
application for amendment ordinarily the court must not refuse
bonafide legitimate, honest and necessary amendmnets and should
never permit mala fide and dishonest amendments. The purpose and
obejct of Order 6 Rule 17 of the Code is to allow either party to alter or
amend his pleadings in such manner and on such terms as may be just.
Amendment cannot be claimed as a matter of right and under all
circumstances, but the courts while deciding such prayers should not
adopt a hypertechical approach. Liberal approach should be the general
rule, particularly in cases where the other side can be compensated with
costs. Normally, amendments are allowed in the pleadings to avoid
multiplicity of litigations.”
8. In the case of Sampath Kumar V/s. Ayyakannu and
Another, (2002) 7 S.C.C.,559, cited Supra, Hon’ble Apex Court
observed that, “Pre trial amendments are allowed more liberally than
those which are sought to be made after the commencement of the trial
or after conclusion thereof. In the former case generally, it can be
assumed that the defendant is not prejudiced because he will have full
opportunity of meeeting the case of the plaintiff as amended.” The
above observations also support the contention of the plaintiffs.
9. Considering the matter on record and facts of the case and
above discussion, in the interest of the justice the Chamber Summons
deserves to be allowed. Therefore, the court proceeds to pass the
following order :
ORDER
-- 4 of 5 --
: 5: Chamber Summons No.995-19
1. Chamber Summons No.995/19 is made absolute.
2. Plaintiff shall carry out amendement as per schedule of the
proposed amendment within forteen days from the date of this
order.
4. Chamber Summons No. 995/19 is disposed of accordingly.
5. Cost in cause.
(K.P. Kshirsagar)
Judge
C.R.No.5
City Civil Court
Gr. Bombay
Dictated and directly typed on : 23/10/2021.
Checked on : 23/10/2021.
Signed by HHJ on : 23/10/2021.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
27.10.2021,05.10pm Mrs. Pushpa R. Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room
No.)
HHJ K.P. Kshirsagar,(C.R.No.05)
Addl. Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 23.10.2021
Order signed by P.O. on 23.10.2021
order uploaded on 27.10.2021
-- 5 of 5 --