Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.982/18 (LCS No.1121/11)
MHCC010071542018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS No.982 OF 2018
IN
LONG CAUSE SUIT No.1121/2011
Mr. Navinchandra s/o. Khiyashi Shah … Plaintiff
- Versus -
The Commissioner
& 5 Ors. ... Defendants
A N D
1] Mr. Tanmay Ashok Vernekar
2] The Court Receiver … Proposed
defendants
Appearance :-
Mr. J. P. Thakkar, Advocate for plaintiff.
Mr. Yadav with Mr. Suryavanshi, Advocates for defendant/M. C. G. M.
Mr. Lad h/f. Mr. Mestry, Advocate for defendants No.4, 5/A and B.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 28/02/2024.
O R D E R
. The plaintiff took out present Chamber Summons for
amendment in the plaint as per the Schedule annexed to it.
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2 C/S. No.982/18 (LCS No.1121/11)
2] It is contended by the plaintiff that the plaintiff has filed
suit challenging notice under Section 351 of The Mumbai Municipal
Corporation Act (in short the M. M. C. Act) and by way of amendment
the plaintiff seeking permission to add contention in respect of
constitutionality of Section 351 of the M. M. C. Act and also
power/authority of the person issuing notice. It is further contended
that proposed amendment is just and necessary for complete and
effective adjudication of the dispute.
3] Defendants No.4, 5/A and B have opposed Chamber
Summons by filing reply. Defendants No.1 to 3 B. M. C. also opposed
Chamber Summons. It is contended by defendants that Chamber
Summons is not maintainable as the proposed amendment challenging
constitutionality of Section 351 of the M. M. C. Act is not within the
jurisdiction of this Court and the plaintiff has made vague averments
without any foundation. The plaintiff is trying to improve his case by
filling up loop wholes. Suit is very old and Chamber Summons has been
filed after lapse of 8 years and there is delay which is not explained.
The proposed amendment is not in respect of subsequent event. Hence
Chamber Summons deserves to be dismissed.
4] The plaintiff filed rejoinder affidavit dated 27/9/2023 and
filed a Pursis on 29/6/2019 and not pressed paragraphs No.11 E to R, V,
W, Y, AF to AG, AK to AO, AR to AT, 11BF to BI, BO to BV, BX to CC and
CF to CH.
5] Perused Chamber Summons, affidavit in support thereto,
record and proceeding. Heard learned advocates for the parties.
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3 C/S. No.982/18 (LCS No.1121/11)
6] The plaintiff has taken out this Chamber Summons for
amendment in the plaint. By way of proposed amendment the plaintiff
is seeking permission to incorporate constitutionality of Section 351 of
the M. M. C. Act and authority of the person issuing notice. Defendants
opposed Chamber Summons on the ground of jurisdiction and delay.
The law is well settled on the point of amendment in the pleading. It is
well settled that the Court should be liberal while considering the
application for amendment and amendment at pre-trial stage should
normally be allowed which are necessary for complete and effective
adjudication of dispute. It is also well settled that while dealing with
application for amendment the merits of amendment cannot be
considered. The Hon'ble Apex Court in the case of Life Insurance
Corporation of India Versus Sanjeev Builders Private Limited & Anr.
(Civil Appeal No.5909 Of 2022) held that the Court must be extremely
liberal if the amendment is necessary for complete and effective
adjudication of dispute and no prejudice would be caused to other side
and this mandatory as per the provisions of Order-VI Rule-17 of The
Code of Civil Procedure. It is well settled that the amendment in the
pleading cannot be refused on ground of delay and negligence as the
Court always use/grant leave to amend pleading even there is some
delay or carelessness on the part of party as power to amend pleadings
is intended to serve the ends of justice and is not governed by any such
narrow and technical limitations.
7] The suit is at a pre-trial stage and proposed amendment
appears to be just and necessary for complete and effective adjudication
of dispute. So also nature of suit is not likely to be changed if proposed
amendment is allowed and no prejudice would be caused to other side.
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4 C/S. No.982/18 (LCS No.1121/11)
Therefore, in view of above referred judgment Chamber Summons
deserves to be allowed. Hence I pass following order :-
O R D E R
1] Chamber Summons is hereby made absolute in terms of prayer
clause (a).
2] The plaintiff to carry out necessary amendment till next date and
shall serve copy of amendment plaint to other side.
Date : 28/02/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
30/03/2024 11:05 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 28/02/2024
ORDER Typed on 28/03/2024
ORDER signed by P. O. on 28/03/2024
ORDER uploaded on 30/03/2024
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