Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.1099-19 in Suit no.7484-03
(H.Ct. Suit no. 3950 of 2003)
MHCC010060182019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.1099 OF 2019
IN
SHORT CAUSE SUIT NO.7484 of 2003
IN
(HIGH COURT SUIT NO. 3950 OF 2003)
Ms Kamala Developers … Plaintiff
Vs.
Jafferullah Shaikh And Ors … Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 2nd DAY OF FEBRUARY 2023
:Appearances:
The learned Adv. Harish Pawar for the plaintiff.
The learned Adv. Manoj Pandey a/w Adv. Pooja Mishra for defendant
no.2.
ORAL ORDER
The plaintiff has filed the present chamber summon
under O. VI R. 17 of the Code of Civil Procedure, 1908 to carry out
amendment in the plaint thereby want to replace shop numbers in the
plaint from shop no.‘3' to shop no.‘2' and shop no.‘11' in the place of
shop no.‘12'.
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2 Ch/sum. no.1099-19 in Suit no.7484-03
(H.Ct. Suit no. 3950 of 2003)
2. In short, it is contention of the plaintiff that, it has filed
suit for recovery of outstanding amount against defendants towards
the maintenance and for injunction. Due to typographical mistake
and oversight, in the body of the plaint, the number of suit shop is
wrongly mentioned as shop no.3 instead of shop no.2 and shop no.
12 instead of shop no.11.
3. It is further contended that, the plaintiff has filed two
suits against the defendant no.1 and his wife Zora Begum for
recovery of the amount. In another suit bearing no.7485/2003, shop
numbers were wrongly mentioned. However due to death of the
earlier advocate, the plaintiff has lost track of suit no.7485/03 and it
came to be dismissed for default on 01/10/2016. Thereafter, the
plaintiff has taken out notice of motion for restoration of suit, but it
was also came to be rejected. Thus the plaintiff has challenged the
said order before the Hon'ble High Court by preferring an appeal
bearing no.362/17, which is pending for hearing. Thus, in view of
such facts and circumstances of the case, it is necessary to permit to
the plaintiff to change the number of suit shop as stated supra. Hence
the chamber summons.
4. Defendant no.1 strongly opposed the chamber summons
by filing reply on affidavit. It is contended that, the chamber
summons taken out by the plaintiff is misconceived and frivolous. It is
further contended that the suit filed by the plaintiff in respect of suit
shop no.2 bearing no.7485/03 came to be dismissed. Hence the
present chamber summons is not maintainable and liable to be
rejected.
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3 Ch/sum. no.1099-19 in Suit no.7484-03
(H.Ct. Suit no. 3950 of 2003)
5. The defendant no.2 also strongly opposed the chamber
summons by filing reply on affidavit. It is contended that the chamber
summons taken out by the plaintiff is nothing but an abuse of process
of law. The plaintiff has taken out the present chamber summons only
to create encumbrances in respect of shop no.2, which has been
acquired by defendant no.2 against valuable consideration. If the
amendment is allowed then it would caused prejudice to defendant
and will definitely change the entire nature of the suit. The plaintiff
has filed the present chamber summons with an intention to fill up
the lacuna which is not permissible under law. Hence, same may
kindly be rejected.
6. Heard learned advocate for respective parties at length.
Perused the record.
7. Following points arise for my determination to which I
record my findings with reasons as follows:
Sr.
No.
Points Determination.
1. Whether the plaintiff is entitled for the relief
claimed in chamber summons?
Partly Yes.
2. What order ? As per final
order
:REASONS:
As to point no.1:
8. It is to be noted that, by way of present chamber
summons the plaintiff wants to correct the shop numbers. It is
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4 Ch/sum. no.1099-19 in Suit no.7484-03
(H.Ct. Suit no. 3950 of 2003)
contention of the plaintiff, that in the agreement dated 08/03/1996
the description of shop is given wherein the number of shop is
mentioned as shop no.2'. I have perused the agreement filed along
with plaint at Exh.'B'. At para nos. 2 and 4, the description of shop is
shown as shop no. 2 admeasuring 254 sq.ft. area.
9. It is submitted on behalf of defendants that, the another
suit filed by the plaintiff in respect of shop no.2 came to be dismissed
and hence to harass defendants, the plaintiff want to incorporate the
number of said shop in the present suit. Whereas it is submitted by
the plaintiff that, the said suit came to be dismissed in default and not
on merits. Though Notice of motion taken out by the plaintiff, for
restoration of said suit, came to be dismissed but the plaintiff has
preferred an appeal from order bearing no. 362/17 and it is pending
for adjudication.
10. The present chamber summons is taken out only to
correct the number of shop and nothing else. As stated supra, prima
faice there is mention of this number in the agreement. In my view if
plaintiff be permitted to amend the plaint to that effect only then it
neither change the nature of suit nor cause any prejudice to
defendants. Hence following order:
ORDER
Chamber Summons No.1099/2019 stands partly allowed.
The plaintiff is only permitted to carry out amendment in the plaint
regarding replacing of shop numbers as prayed, subject to payment of
cost of Rs.1000/ to each defendants.
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5 Ch/sum. no.1099-19 in Suit no.7484-03
(H.Ct. Suit no. 3950 of 2003)
The plaintiff to carry out amendment within 14 Days.
Chamber summons is disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.02.02.2023 (C.R. No.1)
Dictated on : 02.02.2023
Transcribed on : 03.02.2023
Checked & Signed on : 04.02.2023
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6 Ch/sum. no.1099-19 in Suit no.7484-03
(H.Ct. Suit no. 3950 of 2003)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 04.02.2023 NAME OF STENOGRAPHER(GI)
Mr. V. S. Shinde
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 02.02.2023
JUDGMENT/ORDER signed by P.O. on 04.02.2023
JUDGEMENT/ORDER uploaded on 04.02.2023
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