Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S 1280/19(Suit 3282/14)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1280/2019
(CNR No. MHCC010071372019)
IN
S.C. SUIT NO. 3282/2014
Dipika Kishore Sarvankar ..Applicant
In the matter of :
Smt. Kripa Ganpat Makwana .. Plaintiff
V/s.
Dipika Kishore Sarvankar ..Defendant.
Appearances :
None present for plaintiff.
Adv. Ms. Triveni Jani i/b Sharad Jani for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
CR No.:03.
Date : 04.12.2021.
ORDER
1. Defendant has filed instant chamber summons seeking
permission to amend her Written Statement as per Schedule annexed.
2. It is the contention of the defendant that, the plaintiff filed
suit for recovery of money against her on the basis of Power of Attorney
dated 8.10.2014. The plaintiff tendered evidence on affidavit along
with copy of Power of Attorney. It is specific contention of the
defendant that the copy of Power of Attorney which was tendered by
the plaintiff at the time of plaint and which was tendered at the time of
filing of evidence, there is a tampering. In the copy of Power of
Attorney filed along with plaint, suit number was kept blank and in the
-- 1 of 5 --
2 C/S 1280/19(Suit 3282/14)
copy filed along with evidence, suit number is filled in. Thus, the
defendant wanted to raise a ground that the aforesaid Power of
Attorney is not legal and proper and seeking permission to amend her
Written Statement.
3. The chamber summons is opposed by the plaintiff by filing
say on the ground that, the defendant is habitual in delaying the
proceedings. Present chamber summons is also filed after so many
dates with an intention to prolong the matter. It is further contended
that, the defendant, on earlier occasion, filed similar notice of motion
on identical pleadings, which was dismissed by this court. Therefore,
the plaintiff prayed for rejection of the chamber summons.
4. Although the pleadings of the chamber summons were
completed but the plaintiff did not appear, therefore, on last occasion,
conditional order was passed. Inspite of that, none present for the
plaintiff. Therefore, on the basis of pleadings in the chamber summons
and reply. I have taken up the matter for adjudication.
5. It is the specific contention of the defendant that, the
defendant challenged the Power of Attorney by raising defence as per
schedule. It is their contention that, after tendering evidence on
affidavit along with documents by the plaintiff, the alleged tampering
came to their knowledge and therefore, they have filed instant chamber
summons for amendment.
6. It is not in dispute that, the principle governing amendment
of plaint would govern amendment of written statement. In this matter,
it is not in dispute that, the plaintiff tendered evidence on affidavit.
-- 2 of 5 --
3 C/S 1280/19(Suit 3282/14)
Thus, it is clear that, trial has commenced, therefore defendant has to
show the circumstances preventing her in filing the notice of motion
prior to commencement of trial. It is the contention of the defendant
that, the aforesaid tampering came to the knowledge of the defendant
only when evidence on affidavit was filed. Thus, I am of the view that,
the cause of action or the occasion arose to the defendant when the
plaintiff tendered aforesaid Power of Attorney on record. Therefore, I
am of the view that, the defendant justified in moving present chamber
summons for amendment.
7. It is specific contention of the plaintiff that, the defendant,
on earlier occasion, filed notice of motion on identical ground. I have
perused Notice of Motion No.1601/2019, in which the defendant
prayed for rejection of the Power of Attorney, as not tenable in the eyes
of law. The aforesaid Motion was rejected by my Ld Predecessor vide
order dated 9.4.2019 on the ground that, the defendant can raise said
defence while crossexamining.
8. It is submission of the defendant that, as aforesaid
tampering was not within their knowledge prior to filing of the
evidence, therefore they could not raise aforesaid issue and the
evidence without pleadings would have no meaning. I find substance in
the contention of the defendant. Although legality of the Power of
Attorney dated 8.10.2014 was challenged and it was disposed of by
directing the defendant to take said ground in their crossexamination.
I agree with the contention of the defendant that, evidence without
pleading will not have any effect. Therefore, in my view, it is necessary
to allow the defendant to carry out necessary amendment as prayed in
the chamber summons. Thus, I proceed to pass following order :
-- 3 of 5 --
4 C/S 1280/19(Suit 3282/14)
ORDER
1. Chamber Summons no.1280/2019 is allowed in terms of prayer
clause (a).
2. The defendant is allowed to carry out necessary amendments, as
per schedule, within a period of 14 days from the date of order.
3. The defendant to supply amended Written Statement to the
plaintiff.
4. Costs in cause.
5. Chamber summons is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 04.12.2021 Greater Bombay (CR03)
Dictated on : 4.12.2021
Typed on : 6.12.2021
Signed on : 8.12.2021
-- 4 of 5 --
5 C/S 1280/19(Suit 3282/14)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
8.12.2021 at 3.30 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 4.12.2021
JUDGMENT/ORDER signed by P.O. on 8.12.2021
JUDGMENT/ORDER uploaded on 8.12.2021
-- 5 of 5 --