Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010081671999
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.771 OF 2018
IN
S.C. SUIT NO.9835 OF 1999
Shri. Jadavji Lalji Shah and others ...Plaintiffs.
Versus
M/s. Krishna Developers and others …Defendants.
Appearance:
Ld Advocate Darshan Jain for Plaintiff.
Ld. Advocate Chandra More Defendant/MCGM.
Ld. Advocate Sneha Prabhu for defendant no.4.
Ld. Advocate Dalal for defendant no.7.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 03.11.2022
ORAL ORDER
1) Plaintiffs have taken out present chamber summons for
allowing them to amend the plaint as per schedule.
2) Perused the chamber summons, affidavit in support of
chamber summons, affidavit in reply of defendant no.4 and 7,
additional affidavit in reply and record. Heard arguments advanced
by learned advocate for plaintiff, learned advocate for defendant
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no.7, defendant no.4. Court has gone through the written arguments
of plaintiff, defendant no.7 and defendant no.1.
3) Learned advocate for plaintiff argued that by the
proposed amendment plaintiffs want to correct the description of the
suit property, description of the plaintiffs and wants to correct the
typographical mistakes. Plaintiffs wants to correct the defective
prayer clause by incorporating positive prayer in lieu of the negative
prayer. Plaintiffs wants to incorporate subsequent events and
documents obtained after the filing of the present suit. The proposed
amendment is necessary for determining the real question in
controversy between the parties and for avoiding multiplicity of the
suits. Till date, trial of the suit is not commenced. The proposed
amendment is not likely to change the nature of the suit. Pretrial
amendments are to be allowed more liberally. Merits of the
amendment can not be considered at this stage. No prejudice will be
caused to the defendants, if the proposed amendment is allowed. The
proposed amendment is bonafide. Therefore, learned advocate for
plaintiff prayed that chamber summons be made absolute.
4) Learned advocate for plaintiff kept reliance on the
following citations :
(a) Sampath Kumar Vs. Ayyakannu and Another. [(2002)
7 SCC 559]
(b) Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors.
[AIR 2006 SC 1647]
(c) Gurbakhsh Singh and others v. Buta Singh and
another. [AIR 2018 SC 2635]
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CS No.771 of 2018 3 S.C.SUIT No.9835 of 1999
(d) South Konkan Distilleries and Anr. v. Prabhakar
Gajanan Naik & Ors. [AIR 2009 SC 1177]
(e) Government of the Province of Bombay v. Pestonji
Ardeshir Wadia and others [AIR (36) 1949 PC 143]
(f) N. C. Bansal Vs Uttar Pradesh Financial Corporation &
anr. [2018 (2) Bom. C.R. 263]
(g) Usha Devi Vs Rijwan Ahamd and others [(2008) 3
SCC 717]
(h) Cyrila Aninha Cardoso Vs Akar Creations, represented
by Avinash Borkar and others [2019 SCC OnLine Bom
1181]
(i) Hemlata Harish Bhatia and another v. Vallabhdas
Lalchand Dhamanmal and another. [2018 SCC OnLine
Bom 6690 : (2019) 1 AIR Bom R 711]
(j) Jai Jai Ram Manohar Lal v. National Building Material
Supply [AIR 1969 SC 1267]
(k) Revajeetu Builders and developers Vs Narayanaswamy
and sons and others [(2009) 10 SCC 84]
(l) Sajjan Kumar Vs Ram Kishan [(2005)13 SCC 89]
(m) Amulakchand Mewaram and others v. Babulal
Kanalal Taliwala [AIR 1933 Bombay 304]
(n) Vineet Kumar Vs Mangal Sain Wadhera [(1984) 3
SCC 352]
Court has gone through the observations made therein.
5) On the other hand, learned advocate for defendant no.7
argued that the proposed amendment is likely to change the nature
of the suit. Plaintiff is trying to change the subject matter of the suit.
The proposed amendment is barred by law of limitation. The
proposed amendment seeks to introduce averments which were in
the knowledge of plaintiff at the time of filing of the suit. The
proposed amendment will cause prejudice to the defendants which
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cannot be compensated in terms of money as it would take away the
legal right accurred in favour of defendant no.7. The proposed
amendment is not necessary for determination of real controversy
between the parties. There are delay and latches on the part of
plaintiff. The order of Collector, MSD dated 12th May 2005 was
within the knowledge of the plaintiff. By the proposed amendment
plaintiff is adding new properties in the subject matter of the suit.
The amendment seeks to introduce new cause of action. Inconsistent
pleas cannot be allowed to be incorporated by the amendment.
Therefore, learned advocate for defendant no.7 submitted that
present chamber summons be dismissed.
6) Learned advocate for defendant no.7 kept reliance on
the following citations:
(a) Revajeetu Builders and Developers Vs.
Narayanaswamy and Sons and others. [(2009) 10 SCC 84 :
(2009) 4 SCC (Civ) 37 : 2009 SCC OnLine SC 1709]
(b) Radhika Devi Vs. Bajrangi Singh and others. [(1996) 7
SCC 486]
(c) Shakuntala J. Gujar Vs. Dilip R. Pawar & Another.
[2001 SCC OnLine Bom 104 : (2001) 3 Bom CR 247 :
(2001) 103 (2) Bom LR 405 : 2001 AIHC 2353 : (2001) 4
Civ LT 561]
(d) Capricorn One & anr Vs. Raghbir Singh and Ors. [1999
SCC OnLine Del 512 : (1999) 50 DRJ 626 : (1999) 80 DLT
639 : 2000 AIHC 2396]
Court has gone through the observations made therein.
7) On the other hand, learned advocate for defendant
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no.4 argued that the amenity plot vest with MHADA. Till date final
order is not passed. Hence, the proposed amendment is not
necessary. Therefore, learned advocate for defendant no.4
submitted that chamber summons be dismissed.
8) From the matter on record, it appears that plaintiffs
have filed the present suit for declaration that defendant no.1 has
no right title or interest in the suit plot No.A/2 admeasuring
3939.80 sq. meters bearing CTS No.484 (part) of Survey No.287
(part) situated at Vileparle, Juhu, Mumbai and for mandatory
injunction directing defendant no.1 to remove itself from the suit
plot. Admittedly, the suit was filed in the year 1999. From the
perusal of the proposed amendment it appears that proposed
amendment is mostly clarificatory/explanatory and plaintiffs wants
to correct typographical mistakes. Moreover, from the proposed
amendment, it appears that plaintiffs want to give better particulars
and description of the suit property as it was divided in two
portions after filing of present suit. The area of the suit property is
not likely to be changed by the proposed amendment. By the
proposed amendment, it appears that plaintiffs want to introduce
facts and documents reflecting plaintiffs entitlement to the suit
property. Most of the proposed amendment is clarificatory and in
the nature of better particulars. It appears that by the proposed
amendment plaintiffs wants to introduce subsequent events which
transpired after filing of the suit. By the proposed amendment, it
appears that plaintiff wants to rectify the technical defect in the
prayer clause as negative declaration was sought. By the proposed
amendment, plaintiffs want to incorporate prayer for positive
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declaration.
9) From the proposed amendment, it appears that
plaintiffs have not prayed for any declaration about the order of
Collector MSD, dated 12th May 2005 or demarcation of land and
assignment of CTS No.1756. Therefore primafacie, there appear no
substance in the contention of defendant no.7 that the proposed
amendment is barred by law of limitation.
10) Considering the fact of demarcation of land and
assignment of CTS No.1756 after filing of the suit and considering
the fact that the area of the suit property is not going to be changed
by the proposed amendment, there appear no substance in the
contention of defendant no.7 that by the proposed amendment
plaintiffs wants to add new property in the suit. The proposed
amendment is not likely to change the nature of suit and subject
matter of the suit and therefore there appears no substance in the
contentions of defendant no.7 that plaintiffs wants to introduce new
case and new property by the proposed amendment.
11) Considering the matter on record and the proposed
amendment, it appears that the proposed amendment is necessary
for determining the real question in controversy and for avoiding
multiplicity of suits. Considering the fact that trial of the suit is not
commenced and the fact that the defendants will be having
opportunity to amend their written statement or file their additional
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written statement after amendment, no prejudice is likely to be
caused to the defendants which cannot be compensated in terms of
money. The proposed amendment is pretrial amendment. Proposed
amendment is not likely to cause prejudice to the defendants which
cannot be compensated in terms of money. Considering the matter
on record, the proposed amendment appears to be bonafide and
there appears no malafide on the part of the plaintiffs. The
proposed amendment also appears necessary for the purpose of
avoiding multiplicity of litigation.
12) The proposed amendment primafacie does not appear
to be barred by law of limitation and it is not likely to change the
nature of the suit. The guidelines to be taken into consideration
while dealing with the application for amendment provided in case
of Revajeetu Builders and Developers Vs. Narayanaswamy and
Sons and others cited supra relied by the defendant no.7 supports
the claim of plaintiffs. The facts in the case of Radhika Devi Vs.
Bajrangi Singh and others, Shakuntala J. Gujar Vs. Dilip R.
Pawar & Another and Capricorn One & anr Vs. Raghbir Singh
and Ors cited supra relied by the learned advocate for defendant
no.7 are in the humble opinion of this Court different than the facts
of the present case.
13) In the present matter, admittedly the trial of the suit is
not commenced. In the case of Rajesh Kumar Aggarwal & Ors. v.
K.K. Modi & Ors cited supra relied by the plaintiffs, it is observed
that while considering the application for amendment should or
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should not be allowed, Court should not go into the correctness or
falsity of the case and Court should not record findings on merits of
the amendment. In the case of South Konkan Distilleries and Anr.
v. Prabhakar Gajanan Naik & Ors cited supra relied by plaintiffs,
Hon’ble Apex Court observed that “it is well settled that the court
must be extremely liberal in granting the prayer for amendment, if
the court is of the view that if such amendment is not allowed, a
party, who has prayed for such an amendment, shall suffer
irreparable loss and injury. It is also equally well settled that there is
no absolute rule that in every case where a relief is barred because
of limitation, amendment should not be allowed. It is always open
to the court to allow an amendment if it is of the view that allowing
of an amendment shall really subserve the ultimate cause of justice
and avoid further litigation”.
14) It is settled preposition of law that pretrial of the
amendment is to be liberally allowed. Mere delay in taking out
chamber summons for amendment is also not ground for rejection
of the application. The proposed amendment also appears to be
bonafide legitimate. In the case of Cyrila Aninha Cardoso Vs Akar
Creations, represented by Avinash Borkar and others. [2019
SCC OnLine Bom 1181] the description of suit property was
allowed to be rectified. It is also settled principle of law that
clarifactory amendments and amendments which seek to introduce
subsequent events which occurred after filing of the suit and the
amendments which seek to correct the mistakes in the plaint can be
allowed. The rectification in the prayer clause is not likely to change
the basic structure of the suit. Therefore, the above observations in
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the judgments cited supra relied by the plaintiff and observations in
the case of Revajeetu Builders and developers, cited supra relied
by defendant no.7 and settled prepositions of law supports the
contention of plaintiff.
15) Considering the matter on record and above discussion
as the proposed amendment appears to be necessary for deciding
real question in controversy, it appears to be bonafide and no
prejudice is likely to be caused to the defendants which can not be
compensated adequately in terms of money and there appear no
malafide on the part of plaintiff and as it appears that the proposed
amendment would subserve ultimate cause of justice and avoid
further litigation, present chamber summons deserves to be made
absolute. Hence, Court proceeds to pass the following order:
ORDER
1) Chamber summons No.771/2018 is made absolute.
2) Plaintiff shall carry out amendment as per schedule within
four weeks from the date of this order.
3) Chamber summons No.771/2018 is disposed off
accordingly.
Date : 03.11.2022 (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on : 03.11.2022
Typed on : 04.11.2022
Checked on : 05.11.2022
Corrected & signed on : 09.11.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11.11.2022 ; 2.55 pm Mr. U. G. Jadhav
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar
(Court Room No.08)
Date of Pronouncement of
JUDGMENT/ORDER
03.11.2022
JUDGMENT/ORDER signed by P.O.
on
09.11.2022
JUDGMENT/ORDER uploaded on 11.11.2022
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