Final Order 1

Order Details: Chamber summons
Pdf Text: ..1..
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1250 OF 2019
(CNR NO.MHCC010069822019 )
IN
S. C. SUIT NO.1720 OF 2014
Navin Deju Poojari )..Plaintiff
V/s.
M/s. F. M. Chinoy & Co. Pvt. Ltd. )..Defendant
Appearance :
Ld. Adv. Suresh Mali for plaintiff.
Ld. Adv. Cyrus Barucha alongwith Adv. Nirav Shah for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 17/03/2023.
ORDER
1 This chamber summons is taken out by the plaintiff for
amendment of the plaint as per the schedule contending that it is in
explanatory nature as well as in continuation of earlier pleading. The
facts which are sought to be impleaded by way of amendment are
necessary, to bring on record to substantiate the claim and prayed for
grant of chamber summons.
2 Defendant resisted the contentions by filing reply,
contending that the chamber summons is wholly misconceived, not
maintainable, also it does not disclose the cause of action. Plaintiff is
-- 1 of 6 --
..2..
trying to amend the cause of action and the reliefs, which would
change the fundamental character of the suit, which is not permissible
as per law and prayed for dismissal of chamber summons.
3 Plaintiff has submitted his written notes of argument in
addition to his oral submissions.
4 Heard rival parties at length. It is the contention of the Ld.
Counsel for plaintiff that the amendment sought is necessary to
determine the controversy between the parties. The provisions
regarding the amendment of pleading gives power to the Civil Court to
allow the chamber summons. Amending of plaint is to protect the
right of plaintiff and avoid multiplicity of proceedings. It is the
contention of the Ld. Counsel for defendant that the suit of plaintiff is
in respect of the property bearing C.S. No.380, however, the plaintiff is
trying to introduce the pleading regarding property bearing C.S.
No.393 which belongs to the defendant. The contentions regarding the
property of defendant is not proper and would cause prejudice to him.
He further pointed out that the plaintiff wants to change the nature of
the suit. He also submitted that issues are framed and matter is
adjourned for recording of evidence, therefore, the proviso provided
under Order VI Rule 17 of Code of Civil Procedure is required to be
satisfied by the plaintiff. Thus, prayed for rejection of the chamber
summons.
5 Record shows that as the issues are framed, matter is
adjourned for recording of evidence, the plaintiff has not yet tendered
-- 2 of 6 --
..3..
the affidavit of evidence, therefore, it cannot be said that the trial has
commenced in this matter. I am fortified by the judgment passed by
the Hon'ble Bombay High Court in the case of Mahadeo S/o Maruti
Bhanje Vs. Balaji S/o Shivaji Pathade reported in 2012(7) ALLMR
564. The Hon'ble Bombay High Court has observed in para 16 that :
“In our considered view, the trial in a civil suit
commences from the date of filing of affidavits in lieu of
the examination in chief of the witness/ es and the
proviso to order 6 Rule 17 of the Code of Civil Procedure,
1908 will come into play only after stage of filing of
affidavits in lieu of examination in chief of witness/ es.”
6 Thus, embargo imposed under Order VI Rule 17 of the
Code of Civil Procedure, will not apply to this case. It is well settled
that when the trial has not commenced, the Court should be liberal
while allowing amendment in the plaint, subject to the conditions that
it should not change the nature of the suit and should not cause
prejudice to defendant. On going through the schedule of amendment,
it reveals that the plaintiff is seeking addition from Para Nos.19(a) to
19(g) and prayer clauses a(1) and a(2). The proposed Para Nos.19(a)
to 19(c) and 19(g) appears to be relating to the subject matter of
property and it gives further information regarding the orders of
Municipal Corporation in respect of the suit property i.e. C.S. No.380.
Prayer clause a(2) is similar to prayer clause (b), but, the claim
regarding the monetary compensation is added, therefore, it will not
change the nature of the suit.
-- 3 of 6 --
..4..
7 Insofar as the proposed pleadings from Para Nos.19(d) to
19(f) is concerned, it is relating to the property of defendant and there
are certain allegations made in respect of the property belonging to the
defendant, which is not the subject matter of the suit. Thus, he is not
having any proprietary to make contention regarding the property of
defendant, definitely, this will prejudice the defendant. The plaintiff is
required to establish his case regarding C.S. No.380, therefore, I am of
the view that these Paras i.e. Para Nos.19(d) to 19(f) cannot be
allowed to be inserted in the pleading. Likewise, prayer clause a(1) is
concerned, plaintiff is not claiming declaration that he is the owner of
the suit property, but in the plaint at Para No.3, he himself claimed
that the Municipal Corporation is the owner of the property. Thus, as
prayer clause a(1) is totally contrary to the pleading of Para No. 3 of
the plaint, if this prayer is allowed it will amount to change in the
nature of suit.
8 Considering the above discussions, I am of the view that
the chambers summons deserves to be partly allowed. Plaintiff should
be permitted to amend and insert pleadings from Para Nos.19(a) to
19(c) and 19(g) and to add prayer clause a(2), whereas rest of the
schedule regarding addition of pleadings and prayer clauses to be
rejected. Hence, following order :
O R D E R
1. Chamber Summon No.1250/2019 in S.C. Suit
No.1720/2014, is hereby partly allowed.
-- 4 of 6 --
..5..
2 Plaintiff is permitted to add the proposed pleading
from Para Nos.19(a) to 19(c) and 19(g) as well as
proposed prayer clause a(2) in the plaint.
3. The amendment and addition in respect of
pleadings from Para Nos.19(d) to 19(f) and prayer
clause a(1) stands rejected.
4. Plaintiff to carry out amendment within stipulated
time from the date of order.
5. The plaintiffs to file amended plaint and also to
supply copy to other side.
6. The defendants are at liberty to file consequential
Written Statement, if so desired.
7. Chamber summons disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 17/03/2023. C.R. No.03, Gr. Mumbai
Dictated on : 17/03/2023
Transcribed on : 17/03/2023
Signed on :
-- 5 of 6 --
..6..
“Certified to be true and correct copy of the original signed order”.
18/03/2023
at about 5.35 p.m.
(Ms. Sonali Sudhir Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 17/03/2023
Order signed by Hon'ble Judge on : 18/03/2023
Order uploaded on : 18/03/2023
at about 5.35 p.m.
-- 6 of 6 --