Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1115/2019 ..1.. Suit No.4026/2009
CNR No.MHCC010061542019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1115 OF 2019
IN
SUIT NO.4026 OF 2009
(High Court Suit No.1975 of 2009)
Rama Palani Samy .. Plaintiff
Versus
Exclusive Fibers Pvt. Ltd and others .. Defendants
Ms. Shrutika Lakhan, advocate for plaintiff
Mr. Deshmukh, advocate for defendant No.4
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 01st August, 2019
ORAL ORDER
Present chamber summons is taken out by plaintiff for
amendment as per schedule annexed to plaint.
2. It is contention of plaintiff that as per order dated 4th May, 2019
this Court framed additional issues and sought clarification of the suit
premises. Therefore, it is necessary to lead additional evidence in
support of the issues and also need to amend the plaint for description
of the suit terrace. It is further contended that during the pendency of
the suit, in the year 2011, defendant Nos.1 and 2 have sold Row House
No.2 to defendant No.4 herein and therefore, it is necessary to
incorporate certain illegal actions of defendant No.4 into the plaint to
support the relief of permanent injunction. In these circumstances
plaintiff has taken out chamber summons with a prayer to be served on
defendant No.4 as he is only contesting party and urged in above terms.
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3. Defendant No.4 filed reply and resisted the same on the ground
that plaintiff has approached this Court with unclean hands and
suppressed material facts. Defendant Nos.1 and 2 in their written
statement filed on 15th April, 2011 have categorically mentioned that
they have sold Row House No.2 to him (defendant No.4) by registered
Sale Deed dated 5th January, 2011 and had nothing to do with premises
in question. Defendant Nos.1 and 2 have disputed the purported plan
dated 26th May, 1981 relied upon by plaintiff as according to them said
plan was forged and fabricated and never sanctioned by MCGM.
Defendant No.4 filed his written statement on 21st March, 2011 and
contended that sanctioned plan of 1979 and 1980 do not show any
opening on the suit terrace on Row House No.2 and plan sought to be
relied upon by plaintiff i.e. 26th May, 1981 was not an approved plan or
sanctioned plan.
4. It is further contended that vide order dated 18th April, 2011 the
Court has framed issues. Thereafter, plaintiff filed affidavit of evidence
of himself and his witness. They were cross examined by defendant.
Plaintiff closed his case on 18.06.2016. Defendants examined three
witnesses. They closed their case on 29.10.2018. Plaintiff and
defendants advanced their arguments oral as well as written. Matter
was adjourned for judgment on 22.04.2019. But, on 04.05.2019, this
Court has framed additional issues (Issue Nos.5 to 7) with direction to
parties to intimate as to whether they want to adduce further evidence
and matter was adjourned to 03.06.2019. On 03.06.2019 defendants
filed pursis contending that they do not intend to lead additional
evidence so far as Issue No.5 is concerned. They also did not wish to
lead additional evidence in respect of issue Nos.6 and 7 but they
reserved their right to rebut if any further evidence is led by plaintiff.
However, plaintiff has not filed any pursis on 03.06.2019 but taken out
present chamber summons on 18.06. 2019.
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5. It is contended that chamber summons is taken out by the
plaintiff when the matter was reserved for judgment and every single
aspect which plaintiff wants to be pleaded was known to him at the
time of filing of the suit or ought to have been known to him by
exercising due diligence before commencement of trial. Chamber
summons is nothing but mischievous attempt on the part of plaintiff to
fill up the lacuna in his case after having analysed pleadings, evidence
and arguments of defendants. Accordingly, defendants prayed to
dismiss the chamber summons.
6. By filing affidavit in rejoinder plaintiff prayed to allow chamber
summons.
7. Perused chamber summons, affidavit in support of it, reply of
defendants, rejoinder of plaintiff, pleadings of the parties and
documents filed on record. Heard respective counsel for parties. They
advanced their arguments in accordance with respective contention of
parties. Learned advocate for defendants relied upon the authorities in
the cases of J. Samuel and others Vs. Gattu Mahesh and others
(2012) 2 Supreme Court Cases 300, Rajkumar Gurawara (Dead)
through LRS Vs. S. K. Sarwagi and Company Private Limited and
another (2008) 14 Supreme Court Cases 364, Revajeetu Builders
and Developers Vs. Narayannaswamy and Sons and others, (2009)
10 Supreme Cases 84 in support of his submission. In the case of J.
Samuel and others cited supra, it is observed that “No doubt, Rule 17
confers power on the court to amend the pleadings at any stage of the
proceedings. However, the proviso restricts that power once the trial
has commenced. Unless the court satisfies (sic itself) that there is a
reasonable cause for allowing the amendment, normally the court has
to reject such a request”. In the case of Rajkumar Gurawara (Dead)
cited supra, it is observed that, “To put it clear, Order 6 Rule 17 CPC
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confers jurisdiction on the court to allow either party to alter or amend
his pleadings at any stage of the proceedings on such terms as may be
just. Such amendments seeking determination of the real question of
the controversy between the parties shall be permitted to be made. Pre
trial amendments are to be allowed liberally than those which are
sought to be made after the commencement of the trial”. In the case of
Revajeetu Builders cited supra, Hon'ble Apex Court has laid down some
basic principles which are to be taken into consideration while allowing
or rejecting the application for amendment and these principles are, “(i)
whether the amendment sought is imperative for proper and effective
adjudication of the case; (ii) whether the application for amendment is
bonafide or malafide; (iii) the amendment should not cause such
prejudice to the other side which cannot be compensated adequately in
terms of money; (iv) as a general rule, the court should decline
amendments if a fresh suit on the amended claims would be barred by
limitation on the date of application. The fact that the claim is barred by
the law of limitation is but one of the factors to be taken into account by
the court in exercising the discretion as to whether the amendment
should be allowed or refused, but it does not affect the power of the
court if the amendment is required in the interests of justice”. In view
of above legal position, now I consider present chamber summons.
8. It is not in dispute that additional issues were framed on
04.05.2019 when matter was reserved for judgment and by additional
issue No.5 burden is casted upon defendant No.4 to prove as to how
suit as framed is not maintainable. Defendant No.4 has submitted that
he does not want to adduce any evidence in relation to the same and he
has already made legal submission in relation to the said issue.
9. Additional issue Nos.6 and 7 are dependent upon findings of
other issues, in relation to which parties have already adduced their
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evidence. After framing of those additional issues plaintiff has taken out
present chamber summons and stated that he need to lead additional
evidence in support of the issues and also need to amend plaint for
appropriate description of suit terrace and also want to incorporate
certain illegal actions of defendant No.4 to the plaint to support the
relief of permanent injunction.
10. I have gone through the proposed amendments as mentioned in
Schedule annexed to chamber summons. Certainly, no elaboration
relating to the description of property is required as per clauses A and
B of the schedule. Proposed amendments as per clauses A to D of
schedule were within the knowledge of plaintiff at the time of filing of
suit. No reason is assigned by the plaintiff as to why an application
seeking those amendments is not filed prior to commencement of trial.
It is clear that plaintiff has not shown that despite due diligence he
could not seek those amendments prior to commencement of trial.
Further those amendments are not necessary for deciding controversy
between the parties. No doubt, proposed amendments as per clause E of
schedule relate to subsequent events but said event alleged to have
taken place on 05.02.2018. However, plaintiff has not assigned
sufficient cause as to why immediately after alleged incident he has not
taken out chamber summons for incorporating said pleadings.
Therefore, I am not inclined to allow said amendment at such belated
stage. Amendment in clause I relate to substitution of prayer clause (d)
of the plaint with proposed prayer clause (d) seeking permanent
injunction against defendant No.4 from entering into, remaining upon,
installing, erecting, constructing, gaining access to suit terrace. It is to
be noted that plaintiff has already sought permanent injunction almost
in same terms vide prayer clause (c) against all defendants. So, there is
no need to incorporate prayer as per amendment sought in clause I of
schedule. In view of principles laid down in authorities cited supra,
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certainly amendments particularly in clauses A to F and I of schedule,
cannot be permitted.
11. So far as amendment sought in clauses G and H of schedule are
concerned the amendment relate to correction of typographical error in
mentioning the word 'whole' instead of word ‘hole’ in the prayer clauses
(b) and (c). In my view said amendment is to correct typographical
error and if allowed no prejudice is going to cause to defendants.
Therefore, to that extent chamber summons can be allowed as it being
sought to correct typographical error. Hence, pass following order.
ORDER
1. Chamber Summons No.1115 of 2019 is partly allowed as under:
Plaintiff is permitted to carry out correction in the word 'whole'
occurring in prayer clauses (b) and (c) of the plaint by
substituting it with word 'hole' within period of one week from
the date of this order.
2. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 01.08.2019 Gr. Bombay
Typed on : 01.08.2019.
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME Mrs. S. P. Pawar
03.08.2019 at 1.10pm. 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
01.08.2019
JUDGMENT/ORDER signed by P.O.
on
03.08.2019
JUDGMENT/ORDER uploaded on 03.08.2019
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