Final Order 1

Order Details: Chamber summons
Pdf Text: : 1: Chamber Summons No.991-19
MHCC010052042019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS NO.991 OF 2019
in
L.C. SUIT NO. 2181 OF 2017
Ardeshir Tabeshi ]...Plaintiff.
Versus
M.C.G.M. & Anr. ]..Defendants.
Appearance:
-
Shri. Niranjan Waghela, 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 : 24th NOVEMBER, 2021.
ORAL ORDER
1. Plaintiff has taken out this Chamber Summons for allowing him
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
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Learned advocate for plaintiff, Learned advocate for defendant no.1 and
defendant no. -2 Vijay Gupta in person.
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. Pre-Trial
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 knowledge of
the applicant. Proposed amendment is not necessary for determining the
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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 and plaintiff is seeking to introduce facts in support of
contentions already pleaded by giving details. 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.
Prima-facie 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, 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
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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 plaintiff.
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
1. Chamber Summons No.991/19 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.
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3. Chamber Summons No. 991/19 is disposed of accordingly.
(K.P. Kshirsagar)
Date:24/11/2021. Judge
City Civil Court
Gr. Bombay
Dictated and directly typed on : 24/11/2021.
Checked on : 24/11/2021.
Signed by HHJ on : 24/11/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/11/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room no.) SHRI K.P. Kshirsagar (Court Room No.05)
Date of Pronouncement of
JUDGMENT/ORDER
24/11/2021
JUDGMENT/ORDER signed by P.O. on 24/11/2021
JUDGMENT/ORDER uploaded on 25/11/2021
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