Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CH-S 1120-19 IN SU 825-18
CNR NO.MHCC01-006218-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.1120 OF 2019
IN
L.C. SUIT NO.825 OF 2018
Shyamji Dayabhai Shah Educational Trust ]...Plaintiff.
Versus
Municipal Commissioner & Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 19th September, 2019.
Mr. Dalal h/f Karande, Advocate for plaintiff.
Mr. Walawalkar, Advocate for Defendant / MCGM.
O R D E R
1. By this Chamber Summons the plaintiff has sought amendment in
the plaint to incorporate the securing of documents under RTI and the
effect thereof as well as circumstances revealed from those documents,
in the plaint. Amendment is also sought to plead that defendant
Corporation is illegally refusing NOC to run the school. Consequent
amendment in prayer clause is also sought.
2. It is plaintiff's case that, the suit seeking declaration of nullity of
the notice issued under Section 351 and the order passed thereof is
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pending. During pendency of the suit the plaintiff come across
additional facts and documents after obtaining those under RTI.
The City Survey No.1196E is reserved for Private Primary School.
The permission was granted by the defendant for development of
said plot of land to the Society. The Society submitted amended
layout / subdivision / amalgamation of plot bearing City Survey
No.1196A and 1196E. Defendant granted development permission
on the condition to retain plaintiff's school building. These details
are obtained by the plaintiff under RTI recently. Defendant is
granting no objection Certificate to the plaintiff to run the school.
However, it is being refused since April, 2016. The plaintiff had
filed Writ Petition Lodging 422 of 2018 which is disposed of on
6.6.2018 by granting liberty to the plaintiff to adopt appropriate
proceeding. The issue to grant of NOC is connected to the
impugned notice. Therefore, an amendment is sought to avoid
multiplicity of proceedings and to bring the recently discovered
facts on the record of the suit. Provisions of Order 2 Rule 3 allow
the plaintiff to join different causes of action against the same
defendant in one suit.
3. Defendant has opposed the Chamber Summons on the
ground that the documents with Chamber Summons were well
within plaintiff's knowledge and custody since long. Same
documents were part of earlier Chamber Summons No.366/2019
which is withdrawn. Plaintiff is protracting the trial, the statement
in the Affidavit in support of Chamber Summons are wrong and
false. The issue of NOC to run the school cannot be connected to
the subject matter of present suit. In a suit 3470 of 2004 the school
building is held as an unauthorized construction. The first Appeal
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filed by plaintiff is pending without any protection therein. Plaintiff
has suppressed this fact from the Court. Writ Petition No.2870 of
2006 is disposed of without prejudice to defendant's rights. The
order in Writ Petition Lodging No.422 of 2018 reveals that the
Hon'ble High Court expressed its disinclination to grant the relief.
The said opinion of Hon'ble High Court has attained finality.
Plaintiffs online proposal for regularization of the suit premises is
rejected. The plaintiff has suppressed material facts. The Chamber
Summons does not disclose new facts warranting the amendment.
4. Perused. Heard.
5. Advocate for defendant submitted that earlier Chamber
Summons is withdrawn by the plaintiff seeking similar amendment
and therefore present Chamber Summons is not maintainable.
6. Proceedings indicate that earlier Chamber Summons is
withdrawn by the plaintiff after filing the present Chamber
Summons. In such circumstances, present Chamber Summons will
still be maintainable. The withdrawal of the earlier Chamber
Summons will not effect maintainability of present Chamber
Summons.
7. Advocate for plaintiff submitted that the amendment at
pretrial stage be considered liberally. Considering the tenor of the
plaint and the documents attached to the Chamber Summons, the
amendment sought is necessary to adopt all the issues effectively in
one and the same suit. In support of his submissions he relied upon
the Judgment dated 23.1.2001 of Hon'ble Supreme Court in
Civil Appeal No.787 of 2001 between Ragu Thilak D. John Vs.
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S. Rayappan & Ors. He also relied upon Babarao s/o Pandurangji
Patil & Anr. Vs. Kalavati w/o. Rambhauji Sathawane, 2019(4)
Mh.L.J.255.
8. In Ragu's case the amendment was allowed to bring on record
the subsequent developments. It was also held that the the
dominant purpose of allowing the amendment is to minimise the
litigation. The power to allow the amendment is wide.
Hypertechnical approach should not be adopted while considering
the application for amendment. Amendments are allowed in the
pleadings to avoid uncalled for multiplicity of litigation.
9. In Babarao's case the Hon'ble Bombay High Court has held
that
"Another aspect of the present case is that even if
the amendment is rejected, respondent Nos.1 to 4 would
still be entitled to file a separate suit for partition and
separate possession. This would lead to multiplicity of
litigation, which needs to be avoided, as emphasized by
the Hon'ble Supreme Court in the aforesaid judgment in
the case of Abdul Raheman (supra)."
10. In the present case it is undisputed that the plaintiff has
collected certain information and documents by moving an
application under right to Information Act. This is done subsequent
to filing of the suit. Therefore, considering the stage of the trial and
the time of securing such information and documents, the plaintiff
can be allowed to bring these circumstances on the record of the
suit. Therefore, the objection of the defendant to allow the
amendment in this regard cannot be upheld.
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11. The documents attached to the Chamber Summons more
particularly a letter dated 26.3.2019 by the defendant's Officer,
another letter dated 4.5.2016 by defendant's Officer addressed to
the plaintiff, so also letters dated 17.5.2008, 24.5.2004 reveal that
defendants themselves have connected the issue of grant of NOC
with the legality of the school building. In such circumstances,
when the defendants themselves have connected the issue of grant
of NOC with the legality of the suit premises, plaintiff can be
allowed to amend the plaint to add this aspect in the plaint and to
seek consequent relief in that regard.
12. The Advocate for defendant submitted that the amendment in
this regard i.e. grant of NOC need not be allowed as even if this
amendment is rejected, there would be no multiplicity of litigation
as said relief is rejected by the Hon'ble Bombay High Court.
13. Perusal of order of Hon'ble Bombay High Court in Writ
Petition Lodging No.422 of 2018 reveals that, the Hon'ble Bombay
High Court has granted liberty to the plaintiff to adopt appropriate
remedy. In view of this, the submission advanced by the Advocate
for defendants cannot be accepted. Whether the plaintiff is entitled
to seek said relief from this Court in the light of disinclination
expressed by the Hon'ble Bombay High Court in Writ Petition
Lodging No.422 of 2018 can only be considered once such plea and
relief becomes the part of the plaint and not at this stage.
14. Advocate for defendants submitted that the plaintiff has
suppressed filing of First Appeal and rejection of regularization
application and therefore, amendment cannot be allowed.
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15. The alleged suppression of facts by the plaintiff may be an
issue for consideration by this Court while considering the Notice of
Motion. These circumstances, may not be relevant at this stage.
16. Plaintiff has also sought injunction in prayer Clause (b) of
the Chamber Summons. The Rules governing proceedings before
City Civil Court do not permit such a course therefore, said relief
cannot be considered while deciding the Chamber Summons. The
plaintiff is at liberty to take out appropriate proceedings for said
relief.
17. Considering the circumstances, therefore, I hold that the
plaintiff is entitled to carry out an amendment in the plaint. This
will reduce the multiplicity of the litigation and will be helpful to
decide the lis between the parties in one and the same proceedings.
At the same time, it needs to be observed that the plaintiff had
already filed a Chamber Summons with similar prayers and this is
the second Chamber Summons. This reveals that plaintiff has
caused delay in the proceedings. Therefore, plaintiff is required to
compensate the defendants. In the result, I pass the following
order:
ORDER
1. Chamber Summons No.1120 of 2019 is made absolute in
terms of prayer Clause (a) subject to costs of Rs.2000/ payable to
the defendant.
2. The relief sought in terms of prayer Clause (b) is refused with
liberty to the plaintiff to take out appropriate proceedings.
3. Plaintiff to carry out the amendment within two weeks from
today.
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4. Plaintiff shall serve the amended plaint on the defendant and
shall file a typed copy of amended plaint in the Court.
5. Defendants are at liberty to file additional reply/ written
statement.
Sd/-
(A.N. MARE)
Judge,
19/09/2019 City Civil Court, Mumbai.
Dictated On : 19.09.2019
Transcribed on : 19.09.2019
HHJ Signed on : 21.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
24.09.2019 4.15 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
19.09.2019
JUDGEMENT /ORDER signed by
P.O. on
21.09.2019
JUDGEMENT /ORDER uploaded
on
24.09.2019
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