Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S.NO.1237/2019
MHCC010069162019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO. 1237 OF 2019
IN
S.C. SUIT NO. 792 OF 2018
Mohamed Wasim Samsulhaq Choudhry ...Plaintiff
V/s.
1. Dock's Local Transporter's and
Lorry Owner's Association & Ors. ...Defendants.
AND
Arif Ilyash Choudhry ...Respondent.
Appearance
Advs. Mr. Ashutosh Khandeparkar & Harsha More for the plaintiff.
Adv. Mr. S.K. Dubey for the defendants.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 6th January, 2023
O R D E R
This chamber summons is taken out by the plaintiff
requesting for permission to amend the plaint.
2. The chamber summons is opposed by defendant Nos.1, 2,
3, 4 and 6 by their reply.
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3. Heard learned advocate for the plaintiffs. No argument of
the defendants.
4. The plaintiff has relied on judgment in case of Sharayu
Ramkrishna Mhatre V/s. Chandrakant Ramkrishna Mhatre, Suit
No.1964 of 2012 order dated 01.08.2014 passed by the Hon'ble
Bombay High Court. I have gone through the ratio therein.
5. It is the contention of the plaintiff that he is registered
member of defendant No.1Association. The respondent is the elected
member of the committee of defendant No.1 in the election held on
31.03.2018. It is further contention of the plaintiff that by an order
dated 27.02.2018 the registration of defendant No.1 is cancelled by
Upper Aayukta for not submitting audit. The suit has been filed for
restraining defendant Nos.2 to 7 from conducting election for the post
of committee members which was to be held on 31.03.2018. By filing
the said suit appointment of Administrator or Court Receiver was also
prayed. It is alleged that defendant Nos.2 to 7 are illegally collecting
the funds from the members of defendant No.1. On 21.03.2018, the
plaintiff moved for an adinterim order for stay on the election of
committee members of defendant No.1 which was to be held on
31.01.2018 and also for appointment of Administrator or Court
Receiver. Said adinterim relief was rejected. The election was held on
31.03.2018. It was not held fairly as most of the members including the
plaintiff were not allowed to cast their vote. According to the plaintiff,
it is required to declare that administration of defendant Nos.2 to 7
from 2013 till this date is illegal. The defendants are required to be
directed to produce bank statement and list of members. They are
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required to be directed to produce minutes book of the meeting.
Though respondentArif is not the truck owner, he was allowed to
contest the election. On the basis of these facts, the plaintiff wants to
amend the plaint.
6. The defendants in reply resisted this chamber summons
with the contention that allowing of amendment will change the entire
nature of the suit. According to them, the election is properly held.
There is no irregularity in the management of association. The election
is held on 31.03.2018 and audit report is already submitted. They
denied the contentions with respect to elected member Arif. They
requested to dismiss the chamber summons.
7. Read the schedule attached with the chamber summons for
the proposed amendment. In the scheduleI the amendment is proposed
for addition of contentions with respect to the election held on
31.03.2018. The plaintiff wants to insert pleading that the election was
not fairly held, many members including the plaintiff was not allowed
to vote. He also wants to propose pleading in respect of the charges for
the truck owners charged by the defendants. Certain pleading is also
proposed with respect to the functioning and management of the
defendants. In ScheduleII the amendment proposed is in respect of
prayer clause wherein the plaintiff proposes to add prayer for relief of
declaration that the administration from April, 2013 to March, 2018 is
null and void. The plaintiff also proposes to declare the election dated
31.03.2018 as null and void. There are certain prayers which are
proposed in respect of minute books, bank statement, appointment of
Administrator and to declare the election. From the record, it appears
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that after refusal of adinterim relief, defendant No.1 held election, new
managing committee has been elected and the respondent is one of the
member of new managing committee. Therefore, amendment proposed
in the chamber summons is due to the subsequent event of the holding
of election. The suit is on the primary stage. The proposed amendment
can be allowed as effect of subsequent event as to the elections held on
31.03.2018. The chamber summons is filed on 04.04.2019. The
plaintiff could have filed it immediately. I am of the view that
amendment shall be allowed. I am of the further view that it shall be
subject to costs. Hence, I pass following order:
O R D E R
1. Chamber Summons No.1237/2019 is allowed subject to costs of
Rs.2,000/ payable to the defendants.
2. The plaintiff is allowed to carry out the amendment to the plaint
as proposed in ScheduleI and ScheduleII of the chamber summons.
3. After carrying out amendment the plaintiff to serve copy of
amended plaint on the defendants and shall file the service affidavit in
that regard.
4. Compliance as to payment of costs and carrying out the
amendment shall be made within fourteen days.
5. Chamber Summons is disposed of accordingly.
(Rajesh A. Sasne)
Date : 06/01/2023 Judge,
Dictated on : 06/01/2023 City Civil Court,
transcribed on : 07/01/2023 Mumbai.
Signed on : 09/01/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
09/01/2023 at 5.10 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 06/01/2023
Order signed by P.O. on 09/01/2023
Order uploaded on 09/01/2023
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