Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S NO.1159 of 2019
CNR:MHCC010024842022
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.1159 OF 2019
IN
L.C.SUIT NO.777 OF 2014
1 Francis Fernandes .. Plaintiff
V/s.
1 Municipal Corporation
for Greater Mumbai & Ors. .. Defendants
Appearance:
Adv. Surendra Yadav for plaintiff.
Adv.Smt. Vyavhare for defendant/MCGM No.1.
None for defendant Nos.2 to 9.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 08/02/2023.
ORDER
1 Plaintiff has taken out this Chamber Summons for grant of
permission to amend the suit plaint as per schedule annexed to this
Chamber Summons.
2 Defendant No.4 filed reply to the Chamber Summons.
Remaining defendants failed to file their replies.
3 In the Chamber Summons, it has been stated that shortly
after filing of present suit, defendant No.1 supplied copy of 'agreement
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for permanent alternate accommodation' entered into amongst the
defendant Nos.2, 4 and developer to the plaintiff, informing about the
allotment of suit premises to defendant No.4. Same was supplied
pursuant to RTI Application dt.20th January 2014. Said development
took place after filing of the suit. Suit is regarding tenancy rights in
respect of old premises vested in surviving legal heirs of the original
tenant. Above facts regarding 'agreement for permanent arrangement
for alternate accommodation' needs to be taken on record alongwith the
documents. Plaintiff was not in possession of said documents at the
time of filing of the suit and at the same time, he was not aware of its
contents. Therefore, plaintiff prayed that he may be allowed to amend
the suit plaint and to bring on record the submissions, documents and
also seek appropriate relief in respect thereof.
4 Defendant No.4 has contended that notice of motion is time
barred as plaintiff was well aware about execution of 'agreement for
permanent alternate accommodation' in the year 2014 and now after
lapse of six years, plaintiff has taken out this Chamber Summons,
seeking amendment in the plaint regarding said document. Chamber
summons is filed with malafide intention. Contents of Chamber
Summons are totally false. Amendment sought by the plaintiff is not
necessary for adjudication of the present suit. Due diligence is not
shown by the plaintiff. Hence, Chamber Summons may be dismissed
with costs.
5 I have perused the record. It reveals that present suit has
been filed by the plaintiff against Municipal Corporation and private
defendants for mandatory injunction regarding transfer of tenancy
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rights in respect of suit premises and permanent injunction restraining
defendant No.4 from creating any type of third party interest in the suit
premises.
6 Suit relates to the tenancy rights and the proposed
amendment as well as documents relates to the 'agreement for
permanent alternate accommodation' between defendant No.1,
defendant No.4 and developer. It has been clarified by the plaintiff in
the Chamber Summons that he came to know about said documents
after filing of this suit. Defendants have not tendered anything on
record to show that earlier to the filing of the suit, plaintiff was aware
of said facts. Per contra, said contentions can be kept open for decision
alongwith main suit at the time of final adjudication of the matter. At
present, it is evident from the record that the plaintiff wants to bring
subsequent factors on record which though relates to the period prior to
the filing of suit came to his knowledge subsequent to the filing of the
suit. Proposed amendment is in respect of document agreement for
alternate accommodation which definitely throw light on the rights of
the parties regarding suit premises. Said documents and pleadings are
necessary to be determined the suit on merit. Above all, if the plaintiff
is permitted to amend the suit plaint, defendants will get equal
opportunity t carry out consequential amendment in their written
statement. No prejudice will be caused to the defendants if the plaintiff
is permitted to amend the suit plaint. The controversy in between
parties can be resolved on merit by giving equal opportunity to both the
parties. Hence, considering the ends of justice, I hold that plaintiff is
entitled to carry out amendment in the suit plaint as per schedule
incorporated in the Chamber Summons.
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7 Hence, in view of aforesaid discussion, I hold that Chamber
Summons deserves to be allowed in the interest of justice. Accordingly,
following order is passed.
ORDER
1 Chamber Summons No.1159 of 2019 is made absolute in
terms of its prayer clause.
2 Plaintiff is permitted to carry out amendment in the suit
plaint as per schedule incorporated in the Chamber Summons on or
before next date.
3 Consequential amendment is allowed, if any, in the suit
proceedings.
4 Chamber Summons is disposed off.
Date:08/02/2023
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :08/02/2023
Typed on :09/02/2023
Signed on :10/02/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/02/2023 12.24 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
08/02/2023
JUDGMENT/ORDER signed by P.O.on 10/02/2023
JUDGMENT/ORDER uploaded on 10/02/2023
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