Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1091/2019 ..1.. Suit No.9918/1988
CNR No.MHCC0159512019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1091 OF 2019
IN
SUIT NO.9918 OF 1988
Lorna Timothy D'souza .. Plaintiff
Versus
Andheri Om Nikentan Cooperative
Housing Society Limited .. Defendant
Ms. Pamela Dalal, advocate for plaintiff
Ms. Divya Shah, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th July, 2019
ORAL ORDER
Chamber summons is taken out by defendant for amendment of
written statement as per schedule annexed to chamber summons.
2. It is the contention of defendant that plaintiff has filed suit for
allotment and possession of suit premises being Flat No.51, Phase II of
the defendantsociety along with other prayers. Defendant is a
registered cooperative housing society and plaintiff failed to issue
notice under section 164 and 91 of Maharashtra Cooperative Society
Act. Therefore, suit is liable to be dismissed. Plaintiff has sought to rely
upon forged and fabricated documents more particularly letter dated
19th May, 1981 which is not on the defendant's record. Plaintiff was
minor on 19.05.1981 and hence, she could not entered into any kind of
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agreement or letter and therefore letter dated 19.05.1981 alleged to be
signed by plaintiff is badinlaw and cannot be enforced in law. There is
enormous delay and latches on the part of plaintiff.
3. It is further contended that defendant came to know about the
age of plaintiff after she led evidence. Due to inadvertence or by
mistake certain grounds remain to be incorporated in the written
statement. Hence, defendant urged to allow the amendment in written
statement under Order VI Rule 17 of CPC.
4. Plaintiff filed reply and opposed to chamber summons. It is
contended that defendant society has not taken due diligence and
therefore, defendant society cannot be allowed to amend their written
statement after commencement of the trial. Defendant became aware
of age of plaintiff way back in the year 2017 when she filed her
evidence affidavit which expressly mentioned her age. However,
defendant did not take any steps from 2017 and now at this belated
stage defendant society is trying to amend the pleadings which are not
permissible in law. More so, defendant society is also trying to make
out a contradictory case by introducing proposed amendment. The
defendant society was aware whether notice was given to them under
section 164 of Maharashtra Cooperative Societies Act before filing of
suit so now they cannot raise such amendment. Accordingly, it is prayed
that chamber summons be dismissed.
5. Perused chamber summons, affidavit in support of it, reply and
pleadings of parties. Heard learned counsel for parties. They advanced
their arguments in accordance with respective contention of parties.
Learned advocate for defendant society placed reliance upon authority
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in the case of Bharat Petroleum Corporation Vs. Precious Finance
Investment Pvt, 2006 (6) Bom CR 510 in support of her submission.
On the other hand learned advocate for plaintiff relied upon authority
in the case of Vidyabai and others Vs. Padmalatha and Another Civil
Appeal No.7251 of 2008 decided on 12.12.2008 by Hon'ble Apex
Court to buttress her submission.
6. From the case of Vidyabai and others cited supra it emerges
that, “the proviso to Order VI Rule 17 of CPC is couched in a mandatory
form. The court's jurisdiction to allow such an application is taken away
unless the conditions precedent therefor are satisfied, viz., it must come to
a conclusion that in spite of due diligence the parties could not have raised
the matter before the commencement of the trial.” There is no quarrel
about ratio laid down in the said authority. It is not in dispute that
present chamber summons is taken out by defendant after
commencement of the trial. Defendant cited reason that they came to
know about the minor age of plaintiff after she led her evidence.
Further, in respect of other proposed amendments reasons assigned by
defendants are, that same remain to be incorporated due to
inadvertence and by mistake. It is to be noted that in plaint, plaintiff has
not mentioned her age either in cause title or in verification clause.
More so, from the averments in the plaint it cannot be gathered that
plaintiff was minor at the relevant time. It is to be noted that plaintiff
has filed affidavit of evidence in the year 2017 when she disclosed her
age. Therefore, possibility about defendant coming to know about
minor age of plaintiff as on 19.05.1981 after she led evidence cannot be
ruled out. That being so, it can be said that despite due diligence they
could not raise proposed amendment as per clauses (d & e) of schedule
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annexed to chamber summons before commencement of trial. So far
as, question of notice being given under section 164 of Maharashtra Co
operative Societies Act is concerned it was within knowledge of
defendant whether such notice was given or not at the time of filing
their written statement. May it be so, it is on point of law and as such it
can be raised.
7. In the case of Bharat Petroleum Corporation cited supra
principles has been laid down in relation to amendment of pleadings
under Order VI Rule 17 of CPC. Keeping in view aforesaid principles I
consider chamber summons. Contentions in proposed amendment in
clause (b) of schedule is already averred by defendant in para 1 of
written statement. Therefore, there is no need to again incorporate the
same. So far as proposed amendment as per clause (c) of schedule is
concerned; defendants in paras 4 and 5 of written statement have not
disputed document at Exh.A. They have contended that Exh.A is
nothing but a proposal between the plaintiff and the defendants in
respect of suit flat in Phase – II. In para 5 it is contended that proposal
dated 19.05.1981 was not acted upon. Now, by proposed amendment
as per clause (c) of schedule they want to incorporate an inconsistent
plea and negate the admissions given in the paras 4 and 5 of written
statement as pointed above. Therefore, proposed amendment as per
para (c) of the schedule by which defendants want to withdraw
admission cannot be permitted. So far as proposed amendments in
clauses (d and e) are concerned same are essential and necessary for
just decision of controversy between the parties. Further, amendment as
per clause (a) is concerned it is on law point, so I am inclined to allow
the same. Other amendments particularly as per clauses (f to h) are not
necessary for decision of the controversy between the parties. More so,
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by clauses (c & g) defendants want to bring new facts which cannot be
permitted. Keeping in view delay caused in taking out chamber
summons particularly for incorporating contentions as per clauses (a),
(d) and (e) in written statement certain costs is required to be imposed
upon defendants. In light of above discussion following order is passed.
ORDER
1. Chamber Summons No.1091 of 2019 is partly allowed and made
absolute in terms of prayer clause (a) to the extent of clauses
(a), (d) and (e) of the schedule annexed to present chamber
summons subject to payment of costs of Rs.3000/(Rupees
Three Thousand only) to the plaintiff within period of one week
from the date of this order.
Defendants are at liberty to deposit costs payable to
plaintiff in the Court.
2. On payment of costs by defendant to plaintiff, they shall carry
out amendment in above term within period of one week.
3. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 16.07.2019 Gr. Bombay
Typed on : 16.07.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.07.2019, 5.45 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
16.07.2019
JUDGMENT/ORDER signed by P.O.
on
17.07.2019
JUDGMENT/ORDER uploaded on 17.07.2019
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